DOJ fights youth lawsuit seeking climate recovery plan

Following the COP 21 Paris Agreement in December, President Barack Obama delivered a statement affirming the commitment he made seven years ago, “to the tireless task of combating climate change and protecting this planet for future generations.”

That’s odd. A few weeks before, the Department of Justice (“DOJ”) filed a motion to dismiss a lawsuit brought by youth plaintiffs who also seek to protect the same planet from the same threat, also for the benefit of future generations.

{mosads}No one disputes that Obama has become spokesperson for climate action. However, his DOJ continues to defend the permitting of fossil fuel development, transport and export. All that permitting contributes to the pumping of additional carbon concentrations in our atmosphere. Meanwhile, our government subsidizes that same industry that is poisoning our planet. And now, Obama is even having the DOJ fight a lawsuit seeking a climate recovery plan. 

The lawsuit that the DOJ wants dismissed was brought by twenty-one youth plaintiffs, and supported by Oregon non-profit Our Children’s Trust. Retired NASA climate scientist James Hansen is also a co-plaintiff, listed as “guardian for Future Generations.” Hansen, who also serves as plaintiffs’ expert, warned in a declaration that humanity faces “nearly certainty of eventual sea level rise of at least . . . 5-9 m[eters] if fossil fuel emissions continue on a business-as-usual course.” Hansen’s declaration cites a paper he and sixteen other climate scientists published in July.

The reaction from the Obama administration may surprise you. For instance, in its motion to dismiss, the DOJ argued:

“The Court should …reject Plaintiffs’ claim to a fundamental constitutional right to be free of CO2 emissions.”

The DOJ explained that courts shouldn’t have a say in climate change:

“Making environmental policy always involves balancing competing social, political, and economic forces. The Constitution envisions that such balancing is distinctly the province of the Executive and Legislative branches of government, not that of federal courts.” 

The DOJ seemed appalled that the lawsuit sought:

“[A national climate policy] that would require wholesale changes to energy production and consumption in this country,”

For many, Obama was elected for his promise to use the presidency to protect future generations from the climate change-induced rise of sea levels. He has talked and tweeted about it over seven years now. 

Things we know: Failing to act now on #climate change would betray our children and future generations. #ActOnClimate

— Barack Obama (@BarackObama) June 27, 2013

In May, in a statement declaring June “Great Outdoors Month,” Obama affirmed his obligation to protect against climate change for future generations:

“We must work to safeguard nature’s splendor for generations to come. Climate change threatens our lands and waters, as well as the health and well-being of future generations.”

Contrast Obama’s mixed messages on climate change with congruent messages taken in a similar context in 2011. Following Obama’s “evolution” on gay marriage, Attorney General Eric Holder notified Speaker John Boehner (R-Ohio) that Obama had instructed the DOJ not to defend the Defense of Marriage Act, or DOMA. Holder explained how he and Obama had determined that DOMA violated the Fifth Amendment’s equal protection component, and noted how “recent evolutions” in “community practices and attitudes” played roles. Post-Paris, it would be difficult to ignore the recent evolutions in attitudes when it comes to stopping global climate change.

If Obama sincerely wants to combat climate change, why hasn’t he relieved his DOJ from defending against this lawsuit, as he did with DOMA? The worst that could happen would be the youth prevail, forcing him to prepare and implement a plan to phase out fossil fuel emissions, which wouldn’t be so bad.

Finally, it’s not like others aren’t willing to step forward to fight the youth plaintiffs’ lawsuit. The fossil fuel industry has motioned to intervene, complaining the government may not be able to adequately represent its interest. The youth filed their opposition to that intervention on November 30.

Morrison is a freelance journalist, former law clerk with Our Children’s Trust and Whittier Law School J.D. candidate with Environmental Law Concentration (expected graduation May 2016).