Kids Sue the State Over Climate Change ... And (Almost) Win

Remember that whole thing about a “half-baked Hollywood plot” involving kids suing the government to protect the climate they’ll have to live with? Well, here we are at the emotional crux of the narrative, the moment when the kid plaintiffs rush at each other and their attorney, hugging and laughing and tearfully giddy, as the heartstrings-pulling music plays and the sunbeams pour through trees and light up the kids’ faces and everything slips into slow motion and muted, sunset tones.... Roll credits.

Pretty much, anyway.

Yesterday, Judge Hollis Hill, the King County Superior Court judge who presided over the Our Children’s Trust climate change case in Washington, denied the kids’ petition, officially. But she only did so for one reason: that the Department of Ecology is already developing a new carbon-emissions cap to be finalized in 2016, per Gov. Jay Inslee’s executive order.

Meanwhile, Judge Hill’s decision upheld every fundamental argument the kids’ attorney put forth. The Department of Ecology has an obligation, she wrote, under both the state’s Clean Air Act and its Constitution, to protect the climate for future generations. And she made the case that the state’s existing carbon emissions standards are not good enough. “The scientific evidence is clear that the current rates of reduction mandated by Washington law cannot achieve the GHG reductions necessary,” she wrote, to “ensure the survival of an environment in which Petitioners can grow to adulthood safely.”

“We lose, but we win,” explains attorney Andrea Rodgers. “She agreed with us on all of our legal arguments.”

That’s why a press release from the Western Environmental Law Center makes it sound like Judge Hill ruled in the kids’ favor. The decision certainly reads like a win: Not only does she assert that the Department of Ecology has “the mandatory duty under the Clean Air Act” to cap carbon emissions, she underlines what the plaintiffs have been arguing all along, that “this mandatory duty must be understood in the context of not just the Clean Air Act itself but in recognition of the Washington State Constitution and the Public Trust Doctrine.”

Supporters of Our Children’s Trust, the nonprofit that’s been filing similar lawsuits with kid plaintiffs in every state in the nation – and against the federal government – see this decision as essentially “losing the battle but winning the war,” says Rodgers. The war that Our Children’s Trust has been waging in the courts since 2011 is that the Public Trust Doctrine (a legal principle that says it’s a government’s duty to protect natural resources for the public’s use) should be used as a legal basis for capping carbon emissions.

Yesterday’s ruling “is so much bigger than this decision,” Rodgers adds, pointing out that legally attaching citizens’ constitutional rights to climate change is totally unprecedented, and could help influence the conversation about climate change, as well as the law.

So although their petition was technically denied, “We in essence got everything that we wanted,” she says. “The challenge is in the enforceability of it all.” The sticking point here is that Gov. Inslee’s order only attaches Ecology’s emissions cap to a 2008 law, which everybody – from the kid plaintiffs to a Superior Court Judge to the Department of Ecology itself – agrees is outdated. “We have to hope that Ecology puts [Judge Hollis’] language into action when they do the rule making process.”

And if they don’t?

“We will not give up.”

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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