Your Legal Right to a Healthy Environment: Juliana Redux

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Original appeared at Civil Notion

Your Legal Right to a Healthy Environment: Juliana Redux

Joel Stronberg, Esq.
By Joel Stronberg, Esq. and 06/13/23

In 2015 21 youths between the ages of eight and 17 asked a federal court to find that they have a constitutionally protected right to a healthy and sustainable environment. In the interim, more than a few of the 21 youths are now 20-somethings. They’ve yet to have their day in court.

But it's all about to change—twice over. First, a bit of background on the cases is in order.

Juliana v. US is a federal case that looks to establish a habitable environment as a constitutionally protected right. The case has been in and out of the courts multiple times, including the US Supreme Court (SCOTUS). A recent decision by the US District Court in Oregon has now cleared the way for a trial to begin, although a date has not been set.

Lead image of the US Supreme Court courtesy of  Kjetil Ree and Wikimedia

Held v. Montana is being brought by "16 Montana youth against their State to protect their equal rights to a healthy environment, life, dignity, and freedom." The plaintiffs in Held are accusing Montana of violating Articles II and IX of the state's 1972 Constitution. Article II, Section 3 states, "All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment.

Article IX of Montana's state constitution provides:

The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.

The youth are also "challenging the constitutionality of a provision in the Montana Environmental Policy Act that prohibits the state from considering the impacts of climate change when making certain decisions about which projects to permit."

A Montana state court will hear Held beginning on June 12, 2023. The court proceeding is expected to take two weeks.

The Held plaintiffs are asking the court "to declare that Montana's fossil fuel energy policies and actions violate young people's state constitutional rights. The youth want the court to tell the government that it is unconstitutional to keep exploiting fossil fuels and they need to keep fossil fuels in the ground and transition to clean energy no later than 2050."  

Held is the first-ever constitutional climate case that has made it to trial in the US, although Juliana was filed several years earlier. The Juliana plaintiffs are alleging that the federal government—through its actions—is breaching their rights under the US Constitution's fifth, ninth, and fourteenth amendments.

They've based their allegations on the government creating and maintaining a national energy system powered by fossil fuels long after it knew of the damaging consequences to the health and welfare of all Americans and on the nation's natural resources. The Juliana plaintiffs are asking the same questions asked by the plaintiffs in the tobacco cases of the 1990s and the more recent civil suits being brought against fossil fuel companies—

What did the defendant know, and when did they know it?

Although the pivotal questions were the same, the requested relief was not. The youth-led lawsuits are not asking for money; they're asking the courts to tell Congress (Juliana) and the state legislature (Held) what they must do. If the cases weren't already complicated enough, the requested remedies have been accused of violating the separation of powers clauses of the respective constitutions.

Separation of the branches is a core principle of a democratic government and civil society. The issue has acted as a brake to the momentum of both lawsuits.

A judge's opinion of the matter of separation goes to the issue of whether a court can provide a plaintiff with the requested relief. If the answer is no, the plaintiff has no standing to sue. To be granted standing, a plaintiff must have suffered a concrete harm directly resulting from a defendant's action or inaction, and for which the court has the power to redress in some substantive manner.

In their defense of the respective lawsuits, both governments have claimed that the plaintiffs are asking a political question that the courts have no authority to answer. Should Juliana or Held find their way to the US Supreme Court (SCOTUS) for which the court has the power to redress in some substantive manner.

It's hardly a stretch to imagine that the solidly conservative SCOTUS majority would view the plaintiffs' requests in both cases as political matters answerable only by legislatures and voters—should either or both cases make it to the US Supreme Court (SCOTUS) for final judgment.

Does this mean that the cases are unlikely to have any impact on the efforts of climate advocates to make governments protect the health and well being of their citizens at a pace and scale that would avoid the worst consequences of global warming and speed the transition to a low-carbon economy? Far from it.

The cases have already made a profound contribution to the climate movement. In every instance, the suits have spurred public discussions on the causes and consequences of climate change. Juliana has been an integral part of the rise of youth climate activism both in the US and abroad.

Greta Thunberg first stood outside the Swedish Parliament building three years after Juliana was first filed. Youth activists were instrumental in the adoption by the UN's Human Rights Panel of a resolution recognizing the human right to a safe, clean, healthy, and sustainable environment. 

Juliana and the lawyers at Our Children's Trust have spurred others to bring their own suits. There are, or have been, similar state cases in FloridaHawai'iUtah, and Virginia in addition to the Held case in Montana.

In Florida, youth activities supported by Our Children's Trust contributed significantly to the issuance of Chapter 5O-5: Renewable Energy by the Florida Department of Agriculture and Consumer Services (FDACS). The rule requires Florida's electric utilities to meet measurable amounts of their energy from renewable resources. The targeted requirements are at least 40 percent by 2030, 63 percent by 2035, 82 percent by 2040, and 100 percent by 2050.

The US is behind other nations in recognizing the right to a healthy environment. The countries recognizing the right include Portugal, Argentina, Greece, India, Italy, and Nigeria. As reported by Inside Climate News,  

While many countries recognize the right to a healthy environment through their constitutions legislation, court decisions, and regional treaties, there are notable exceptions—including Canada, the UK, China, and Australia.

Whatever the outcomes of the JulianaHeld, and other related lawsuits, I believe that the next generation of political leaders will guide the nation to a low-carbon economy in no small measure because these cases are serving as lessons in democracy and the power of youth. lt’s a generational thing.

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