Bringing the Climate Fight to the Courtroom, Permission Slips in Hand

Unlike other states, Washington is giving kids suing over carbon emissions their day in court.

It’s a bracing moment in the packed hearing room on the ninth floor of the King County Courthouse. In just a few minutes, Judge Hollis Hill will arrive to take her seat at the bench. Attorney Andrea Rodgers grins at the five plaintiffs seated at the council table with her, then leans in, whispers something, and nods encouragingly.

They’re shifting in their seats a bit, but they’re mostly calm; with hands folded, they look up at their legal counsel and then down again at their notebooks. They know how they’re supposed to behave. They’ve been prepped. Most importantly, Rodgers told them: No thumbs up, and no high-fives, during an oral argument.

“We have to keep professional, even though we don’t really understand what we’re supposed to do to be professional,” says 14-year-old plaintiff Wren Wagenbach, who admits that she doodled a little bit during the hearing. “We had to keep shushing a couple of [the kids] because they were like ‘Yesss! Good job! Go Andrea!’ and we were like, ‘Ssshhhh, we’ve got to listen!’”

Another thing attorney Andrea Rodgers doesn’t usually have to do prior to a hearing, in addition to prohibit high-fives? Obtain a permission slip from a principal’s office to request a client’s attendance at said hearing. But that was necessary here, too.

Sure, they can’t vote – but they can still sue. As climate activists develop more (and more creative) methods to get governments to do something about climate change, here’s another strategy that’s getting some major play in Washington: get the kids to take ‘em to court.

Tuesday’s hearing marks the last oral argument that Rodgers, an attorney for the Western Environmental Law Center, will make on behalf of the eight tweens who’re petitioning Washington’s Department of Ecology to cap carbon emissions using “the best available climate science.” Judge Hollis Hill ordered the Department of Ecology to revisit the kids’ petition earlier this summer, but Ecology “decided to ignore that,” according to 13-year-old plaintiff Gabe Mandell, “which was really frustrating.”

In the hearing, Assistant Attorney General Kay Shirey argues that Ecology is already in the process of updating its emissions rules, per Governor Inslee’s executive order, and suggests that eliciting the fundamental rights of future generations is legally immaterial here.

But the development of a new carbon rule according to the state’s existing 2008 emissions-reduction resolution “shouldn’t be seen as a remedy for what we’re seeking,” argues Rodgers, “Because it’s not.” The best available science, she says, updates that rule significantly. And then, with emotion,“You’re being asked to make a rule that has the potential to change the world!” she tells Judge Hill. “What makes this case special is that it concerns these kids’ fundamental rights.”

Yep, our children are suing us. And it’s pretty damn serious. Zoe & Stella Foster v. Washington Department of Ecology is among at least five active lawsuits like it across the country. In May 2011, the Oregon-based nonprofit Our Children’s Trust filed similar suits alongside kid plaintiffs in every state in the nation. Each case is slightly different, but fundamentally employs the Public Trust Doctrine, a legal principle that says it’s the government’s duty to protect natural resources for the public’s use (in Washington, the Department of Ecology uses it to protect the state’s shorelines and waterways). In August 2015, Our Children’s Trust helped twenty-one kids, aged 8 to 19, file a lawsuit against the Obama Administration, too. Their argument: the fact that the president and a slew of federal agencies have authorized the extraction of fossil fuels, despite the agencies’ knowledge of climate science, violates the kids’ Constitutional rights.

Most of the Our Children’s Trust cases haven’t gotten very far. In Washington, though, these kids could win. And while some can’t help characterizing their near-success as “a half-baked Hollywood plot point” (because, c’mon, kid climate activists suing the government for not saving the planet... and winning?! Be still my heart!), the fact that Judge Hill sent the kids’ petition back to the Department of Ecology this summer was unprecedented. She asked the agency to consider its own December 2014 report that both acknowledges the need to update the 2008 rule according to better climate science and asserts that failing to adequately address climate change could cause “intergenerational inequities,” i.e. harm our children, and our children’s children.

Wren Wagenbach, for one, doesn’t understand Ecology’s resistance. “It doesn’t make sense to me why they wouldn’t be trying to make a difference,” she says. “Because I know they have kids and are worried about their kids having a safe future.”

It’s worth noting that Governor Inslee’s move to cap carbon emissions arrived barely two weeks after he spent 90 minutes with five of the eight young plaintiffs in this lawsuit. During the meeting, says Andrea Rodgers, “we asked him to direct Ecology to promulgate a rule.” His gesture, however, was not enough for the kids. To ask Ecology to enforce the 2008 rule would only reduce emissions 50 percent by 2050; the kids want 80 percent. “The leadership needs to say, ‘We’re taking action that is grounded in science,’” says Rodgers. “Unless and until Ecology says that, then these kids will keep fighting.”

Back at the courthouse, Judge Hill tells the room that she would consider the information she had received and issue a written statement as soon as possible. And with that, the hearing is adjourned.

“I feel like we have a chance of winning,” says 13-year-old Gabe Mandell. “It was well-argued on both sides, I’ll say. I think we did a little bit better – I hope we did a little bit better – but we have extremely good points. We’re going to live in this world. It’s our constitutional right to have clean air and clean water.”

Mandell is firm, convinced – almost nonchalant. He says he’s been “active in climate change for years.” He and the other plaintiffs are all members of a youth-driven international nonprofit called Plant for the Planet, and as such, have planted tons of trees, joined Gates Divest activists at the Gates Foundation headquarters, and testified at City Council meetings to request climate-change warning labels for Seattle’s gas pumps. (The label would include the words “99 percent of climate scientists agree” and “maybe have a picture of a polar bear, or rising tides, or climate refugees and things” says Wagenbach). Plus, Andrea Rodgers says, “They can read! They can see that the most significant climate change will happen by 2050. That’s not a far-off time. They’ll be in their 40s and 50s.”

Of course, they’re still “very much kids,” Rodgers says, “very, very much.” During ocean acidification discussions, for instance, a plaintiff might jump up and command his peers to “say ‘ocean acidification’ five times fast!” But they can be serious, too. Take Gabe Mandell’s point: there can’t be a viable economic argument for the failure to address climate change, because the effects of climate change are going to cost us, big time. “If we don’t do this, catastrophic things are going to happen,” he says, shaking his head. “I mean, cities are gonna be flooded, states are gonna be flooded, countries are gonna be flooded, Bangladesh is gonna be completely underwater, the ocean’s gonna be acidified. And climate change is going to cause a huge monetary downfall! There’s really no reason to be for climate change!”

Do the kids understand every detail? Of course not. “I understood Andrea pretty well,” says Wren Wagenbach, “except when she was talking about the ‘R’ things.” (RCW 70.235 is the name of the 2008 emissions-reduction law). But still: “It’s fun to put your ideas out there and think that someone’s going to be listening to you... for once!” she says, laughing. “That doesn’t happen a lot for kids, especially when they’re trying to make a difference.”

Sara Bernard writes about environment and education for Seattle Weekly. She can be reached at sbernard@seattleweekly.com or 206-467-4370. Follow her on Twitter at @saralacy.

 
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