Plaintiff Kelsey Cascadia Rose Juliana outside the hearing at Federal Court in Eugene yesterday. Photography by Robin Loznak.
Levi Draheim has a front row seat in the courtroom for what’s being billed as “the biggest case on the planet,” but his feet don’t touch the floor, and his mop of curls barely clears the wooden bench back. The nine-year-old Florida boy, who has nightmares about losing his barrier island home to the floodwaters of a rising sea, is one of the “Climate 21,” a group of twenty-one youth plaintiffs from across the United States who filed suit against President Obama and various federal agencies. They allege that the United States’ failure to protect their rights to a future not wrecked by climate change is a violation of the Constitution.
Julia Olson, the plaintiffs’ attorney and Executive Director and Chief Legal Counsel of Our Children’s Trust, filed Juliana, et al. v. United States, et al., on August 12, 2015, International Youth Day. Three trade associations representing the fossil fuel industry intervened, and both the government and the trade associations filed motions to throw the case out of court. They lost, and on September 13, U.S. District Court Judge Ann Aiken heard oral arguments from lawyers representing all of the parties prior to making a determination about whether the case will go to trial.
Levi listens intently, passing the occasional note, which earns him a finger-flick on the top of his head from one of the other youth plaintiffs seated in the row behind him. They may be the plaintiffs on a landmark Constitutional case that’s been compared to Brown v. the Board of Education, but they’re still kids. And they’re waiting for Sean Duffy, trial attorney for the Department of Justice Natural Resources Section, to answer the question asked by U.S. District Court Judge Ann Aiken: “Who will speak for the children?”
Duffy stands at the lectern, silent.
Plaintiff Journey Zephier, 16, Standing Rock Sioux tribal member, after the Federal Court hearing.
“Sometimes lawyers get so caught up in arguments that they miss the opportunity,” said Judge Aiken. “All of the children in foster care, the children who are abused, who speaks for them?”
In his arguments, Duffy admitted, “Climate change is real and we're causing it. But federal courts are not the forum to hash out solutions. . . . Congress and the President are tasked with that. . . . The plaintiffs have made a wonderful case that should be heard in the halls of Congress.”
“It has been heard in the halls of Congress," Aiken retorted, accusing the federal government’s defender of asking the plaintiffs to keep “playing whack-a-mole” with the issue of climate change. The heart of the climate-kids case is about legal damages, Constitutional rights, and discrimination. The case contends that young people and generations yet to come are being discriminated against because they don't have the right to vote but will be most impacted by runaway warming.
A few weeks ago, government scientists stated that global warming directly contributed to the fatal floodwaters that blanketed parts of Louisiana last month. Jayden Foytlin, a resident of Rayne, Louisiana, sits in the front row near Levi, listening while Olson tells her story.
“She woke up at 5 a.m. on the morning of August 13 and she was ankle-deep in water in her bedroom,” Olson remarked. “As she says, she ‘stepped right out of the bed and right into climate change.’”
The flooding in Louisiana killed thirteen people and forced at least 30,000 more to evacuate. An estimated 146,000 families, like Jayden’s, are now trying to repair the flood damage to their homes. The Louisiana flooding came a little more than a week after NOAA released its 2015 State of the Climate Report, confirming that “global surface temperature in 2015 easily beat the previous record holder, 2014, for the title of warmest year in the modern instrument record,” and that “fourteen of the fifteen warmest years on record have occurred since the year 2000.”
According to Olson, “My client Jayden, who is thirteen years old, just survived a 1,000-year flood event that devastated her home with sewage-contaminated rivers running through her bedroom and her community. This is the ninth flood event that is supposed to happen once every 500 years or more to hit her region in two years, floods that would not happen but for climate change. Yet, the national energy policy of the U.S. is ‘drill baby, drill.’”
After relating Foytlin's story Olson introduced evidence of the government’s six decades of “deliberate indifference,” in which the United States avoided meaningful action on climate change. She then responded to Duffy’s assertion that the U.S. government is not responsible for climate change.
“I think of it like a coin,” said Olson in her oral argument. “The head of the coin is the Department of Energy, tasked with creating national plans and policies. The tail of the coin is the Environmental Protection Agency (EPA), which was created to ensure that pollution is controlled, to protect public health and the welfare of the nation. But that coin ends up in the pockets of fossil fuel companies.”
Against the backdrop of a three-by-five-foot chart documenting the U.S. government’s long-standing knowledge of climate danger—dangers the feds have deliberately failed to address—Olson stated,
“The political system has had five decades to work on this issue. It has failed. Some have said that this lawsuit is radical. They said ending the segregation of schools and buses was radical. They said giving people the right to vote or marry was radical. What the plaintiffs are requesting is not radical at all. . . . These children cannot wait another fifty years —they can’t even wait another five— to secure their rights. We are running out of time.”
Olson, a parent of two, hammered home her closing argument with a quote from the writer Terry Tempest Williams:
“The eyes of the future are looking back at us and they are praying for us to see beyond our own time.”
Judge Aiken has sixty days to issue a decision on whether Juliana v. U.S. can proceed to trial. Aiken will answer the question that Duffy could not: “Who will speak for the children?”
Stacy Bannerman is the author of Homefront 911: How Families of Veterans Are Wounded by Our Wars (2015), and When the War Came Home (2006). She is a member of Southern Oregon Climate Action Network (SOCAN). Learn more at www.stacybannerman.com.