Today, Andrea joins Ross and Christophe to explain why Juliana v. US qualifies as a constitutional law case, sharing the progress of the case to date and discussing how it provides a framework for decarbonization. She describes the nuances of the government’s duty to protect its citizens and counters the argument that the government didn’t know its energy policy contributed to climate change.
Full Transcript
Alexsandra Guerra: You’re listening to the Reversing Climate Change podcast by the team at Nori, the carbon removal marketplace. This is a show about the innovators and entrepreneurs developing solutions to climate change.
Ross Kenyon: Hello and welcome to the Carbon Removal Newsroom. That’s not the name of this podcast. This is Reversing Climate Change, but if you have not heard Carbon Removal Newsroom, please subscribe to that. If you like these shows, please give them a great rating in your app of choice, mostly iTunes. That’s the one that does the most good for us. So if you like the show, please rate us and review us in iTunes. This is Reversing Climate Change. Muscle memory got the better of me. We are here with another Reversing Climate Change first.
We are talking about climate and the law and a very important lawsuit that is happening right now.
Christophe Jospe: It is a way to mess up basically what’s going to be our most exciting podcast, Ross.
Ross Kenyon: Thank you for that. I just wanted to promote my other podcast.
Christophe Jospe: So if you didn’t know, there are actually two Nori podcasts. One of them is called Reversing Climate Change. The other is Carbon Removal Newsroom. And if you’re like just the news, sir, don’t give me this long banter of what is a 40 minute drive of two hosts blathering about different topics and really getting into the nitty gritty. Tune into the Carbon Removal Newsroom because that’s where you’ll get the news. So that’s where we try to cover breaking news and we’re always looking for news stories. And unlike these, which we like to do in person, those happen virtually.
So sitting across from us here in our Sonny Ballard office, which by the way, I may get myself into trouble, but... I’ve just been saying it. I’m like, guys, spring is here. It’s not going to go away. It’s like 72 degrees.
Ross Kenyon: I think it’s going to be a fake out.
Christophe Jospe: No, it’s here. It’s here to stay. Climate change is real. It’s just warming our planet. But there’s some kids who are suing about it. They’re mad. And I actually think this is one of the most... Citing cases of the century. I really hope it turns into be what it has the potential to be. And we have the first practicing attorney who is, I think, on our podcast, which shows that we think more than just about the science because this is really a very interdisciplinary challenge. Andrea Rogers, she’s Senior Staff Attorney for Our Children’s Trust, and we’ll learn more about what they do and what they’ve been involved with and why we think this is so important and relevant to carbon removal.
But Andrea, we like to start out with people’s story, sort of. Yeah, we’re both Sun Devils. I worked there. Ross graduated from there. So we like the way that ASU thinks, but I won’t put words in your mouth. How did it all get started?
Andrea Rogers: Well, I followed in my dad’s footsteps. My dad was a law teacher here at University of Washington for 50 years, and he’s one of the founders of the field of environmental law. He filed the first petition to ban DDT, and he testified. So I’ve been around it, you know, we laugh about it, but our family vacations, we’d go to like super fun sites and mines and fish hatcheries. So you see us like, are my family standing there smiling in front of like a major, Yeah, exactly. You see the sunny climbs, the trend, right?
But ASU had a journal called the Jurometrics, the Journal of Law, Science and Technology, and they were doing a lot of really cutting edge legal work, getting science into the courtroom, essentially, and scientific evidence. And so that’s why I wanted to go to ASU. And there, you know, I really enjoyed being on that journal, but I also had some amazing constitutional law professors. And so I got really interested in constitutional law. And then as I’ve practiced, I’ve done pretty much environmental law, Indian law. I’ve represented a lot of Indian tribes as well.
And about 10 years ago, I was asked to start coming up with Professor Mary Wood. She’s a law professor at University of Oregon, and she developed the legal theory that we’re essentially implementing. Yeah. And those cases worked their way through the system. And we learned a lot. We learned that it’s really hard to sue a government for failing to do something. And so the next round of our cases were really, you know, we realized that governments aren’t just sitting back while climate change happens. They’re actively authorizing and causing it. And so we filed another round of cases.
And that’s what the Juliana case is. It’s a case against the United States that we filed in 2015. Alleging that the federal government has known about climate change for decades. And in spite of that knowledge, they’ve pursued fossil fuel based energy policies.
Christophe Jospe: Wow. So this case cuts super deep. This isn’t one of those things that you can just brush off because this is a constitutional law case. You also described a number of things. You said constitutional law, environmental law, Indian law. Can you define those terms? Yeah. Also, what what makes constitutional law special?
Andrea Rogers: Well, environmental law has largely in the last 50 years been statutory. So the original environmental cases, you know, hundreds of years ago were based on something called nuisance. And that’d be if if you have a neighbor, they dump their crap in your yard. Or in their yard and it smells, you could sue them to abate the nuisance to stop what they’re doing, right? And so a lot of the early cases were brought on those nuisance grounds. And then in the 60s and 70s, when rivers were on fire in the Northeast.
Northeast, other environmental destruction is going on. A lot of statutory environmental laws were passed, like the Clean Water Act, which says, thou shalt not discharge into waters of the United States. And those acts have done a tremendous amount to protect our natural environment. But they’ve also been implemented in a way that’s legalized certain levels of pollution. Yeah.
Ross Kenyon: This is what I was telling you, Christophe, is one of these like revisionist takes on tort laws that a nuisance was pretty effective, right, in stopping pollution. And then the Clean Water Act and Clean Air Act basically said you can pollute up to this amount and anything under this is fine, whereas that might have been liquidated.
Andrea Rogers: Yeah, that’s exactly right. And unfortunately, you know, those are all enforced by federal agencies and state agencies, and they have discretion in how they enforce those. And they’ve really used their discretion to permit all sorts of kinds of activities that are harming the environment. Whether it’s the destruction of wetlands, the emission of greenhouse gases, all of these activities are approved by the government. You can’t drive a car unless it’s been certified as compliant with government standards at this point in time. So, you know, while those laws are extremely successful and they’re being used very strongly today, even there was just a recent decision that invalidated President Trump’s decision to lease oil and gas on certain federal lands.
Out of a Wyoming court and they said that violated NEPA because they didn’t assess the impacts of climate change.
Christophe Jospe: Sorry, what’s NEPA? He’s going to do that.
Andrea Rogers: Yeah, NEPA is the National Environmental Policy Act, and it’s one of our original environmental laws that says before you undertake any major federal action, you need to consider the environmental impacts of that action and think about it. You have to give it what’s called a hard look. You can’t just shrug it off and say, yeah, we’re going to kill a few people with this project, but that’s okay. You really need to give the environmental impacts a hard look, and that has to inform your decision.
Christophe Jospe: Right. And actually, when I went to grad school in environmental science and policy, we got to do all sorts of environmental impact analyses for different decisions being made. But I want to pull back the question of this is a constitutional law case. Yeah. And I want to just read verbatim from the prayer for relief here because it’s just so beautiful.
Ross Kenyon: This is in the amended complaint.
Christophe Jospe: We’ll link to this in the show notes if you want to read it for yourself. Declare that defendants have violated and are violating plaintiffs’ fundamental constitutional rights to life, liberty, and property by substantially causing or contributing to a dangerous concentration of CO2 in the atmosphere and that in so doing, defendants dangerously interfere with a stable climate system required by our nation and plaintiffs alike. And then it goes on and there are a bunch more and maybe we’ll pull from that. But it’s kind of amazing because, you know, on the one hand, it’s like, oh, you’re just using these children to make this case.
On the other hand, it’s like, no, these children have to suffer these consequences that they are not able to control. Sure.
Andrea Rogers: Yeah, they were born into a dangerous climate system. And I think if you were to talk to our kids, you know, they are very cognizant of the reality that they’re experiencing. You know, one of our plaintiffs lives on a barrier island in Satellite Beach, Florida. He’s had to have We have a plaintiff in Louisiana whose home has been flooded. Kids are living with wildfire smoke. They can’t go outside in August in Oregon. So they’re living with these very real consequences. So our case is really about what does liberty mean? And it’s really, it’s an exciting historical question because what does it mean to be an American citizen?
You know, you would think that America should exist. But when you look at the impacts of climate change, we’re talking about losing massive parts of the United States of America. We’re losing massive attributes of who we are as a nation. And that’s what the kind of evidence that we’re bringing in our case and why we believe it rises to the level of a constitutional violation.
Ross Kenyon: Okay, I have a quick clarifying question, and I want to ask something a little more substantive. Is this claiming that the government has a constitutional obligation to protect its citizens?
Andrea Rogers: Sort of. What they have an obligation to under the Constitution is they have an obligation not to undertake activities that infringe upon fundamental constitutional rights. So they don’t have an obligation under the Due Process Clause. But that’s not what’s happening here.
Ross Kenyon: Yes, thank you. And I asked another question ahead of time before we started recording. I was like, oh, I’m getting all these things wrong. I’m really happy we have you in here to steer me true. Because I was going to ask, the duty to protect, I saw that there’s been lawsuits about this with regard to law enforcement officers where it’s been decided that they don’t actually have a duty to protect citizens. So I was going to ask, this isn’t going to happen for climate if it doesn’t happen for police.
Andrea Rogers: Well, when a duty to protect does arise, and this is, we’re getting way in the reeds, there’s a case, it’s called DeShaney. And as I just said, there’s no affirmative obligation under the due process. St. Patrick’s Day. To home or to the drunk tank, whatever you do, the officer leaves them on the side of I-5 and says, well, you need to make your way home. Well, drunk man then staggers onto the freeway and gets run over by a car. So that officer could then be held liable for a violation of that individual’s constitutional rights because he placed him affirmatively into that position of danger, knowing that he was drunk and likely would be unable to find himself.
So there is an exception for that. And that’s what we’re alleging in our case, because the government has known for 50 years that climate change and pursuing fossil fuels would result in destruction of significant natural resources and health impacts on these children. Yet they’ve continued to pursue fossil fuel policies.
Ross Kenyon: Can I ask about this? And this is me pretending to be a lawyer or a wannabe or someone who just likes reading about this stuff. But say, for instance, the government didn’t know that greenhouse gases contributed to climate change. Do you think this would still be a problem with like strict liability where even if you didn’t intend to do something wrong, which is mens rea, right, then they would still be liable?
Andrea Rogers: Well, I think it would depend on whether they, the aspect of whether they control the system, right? If they’re in control of the system, they have a duty to have certain amount of knowledge about what’s going to be the impacts of their actions, right? And I think that’s part of our case. I think what most people don’t realize is the extent to which the government controls our energy system. And you even hear this from people like Rick Perry and other conservative voices about the extent to which the government controls. Government plays a role in controlling our energy system and our energy future.
I mean, all of the presidents play a very, very significant role. Rolling out their energy policy is a huge part of every presidency. And you remember all of the above or energy dominance, which is what we have now, which no one’s quite sure what exactly that means, but...
Christophe Jospe: Probably that we surpassed Saudi Arabia as the world’s largest oil producer, which is a fact that people really tout very loudly. But fracking has a lot to contribute. And it sort of happened like quietly under the Obama administration, who has all of these great... Environmental accolades, but like, come on, like fossil fuels are going up there.
Andrea Rogers: Absolutely. Well, one of the best clips we have that my colleague played at a presentation is of President Obama out of office wearing a tuxedo, giving a speech somewhere, bragging about how he was the reason the U. S. became the number one oil producer.
Ross Kenyon: Oh, yeah. It’s in the podcast, too. There’s a podcast that our Children’s Trust does called No Ordinary Lawsuit. And it’s great. Well worth a listen, I would say. And I imagine it’ll keep getting updated as things keep going. We should probably dive back into the mechanics of what’s happening with the case. Yeah.
Christophe Jospe: So you mentioned 2015 and here we are in 2019. So what’s happened since then and where is this going?
Andrea Rogers: Yeah, the government moved to dismiss the case. And we originally filed when Obama was the defendant. It wasn’t the Trump administration. It was against the Obama administration. They moved to dismiss the case, essentially arguing that the court doesn’t have the power to hear these kinds of claims.
Ross Kenyon: It was like a standing...
Andrea Rogers: They raised standing and also other arguments like separation of powers, that climate change is something that only the executive or the legislative branch should work on, not the judicial branch and in some other procedural defenses. In November of 2016. We received a beautiful decision from Judge Ann Aiken, who’s District of Oregon, where our case was filed and heard. And in that case, she found for the first time that there’s a fundamental right to a stable climate system that protects human life. And that’s an attribute of liberty because you essentially can’t have, enjoy any of your other fundamental rights if you don’t have a stable climate system.
And she relied largely upon the case of Obergefell, which is the gay marriage decision that Justice Kennedy authored a few years ago. And so it was that line of cases that she relied upon and she allowed the case to go to trial. So in a normal world, the case we would have gone to trial, but this is a climate change case and that’s not what happens. In our case, the government moved to stay the case 12 times.
Ross Kenyon: Is that like to get rid of it or what is that?
Andrea Rogers: It’s to get rid of it. They would do these interlocutory appeals, which are early appeals. Generally what happens, you prevail on a motion to dismiss and then you go to trial. And then if you lose, you can appeal to a higher court. They tried to go to a higher court five times before we got to trial, which is unprecedented and remarkable. So we went up to the Ninth Circuit Court of Appeals twice and had the Ninth Circuit Court of Appeals deny their petition and send the case back to trial. We went up to the United States Supreme Court twice, and both times they declined to hear the case early and sent it back to trial.
Then this last fall, they filed another motion for an interlocutory appeal for an early appeal, and this time it was granted. And Judge Aiken granted it, but she did so saying it’s not appropriate for an early appeal. There needs to be a trial so that we can resolve the questions of fact. But she felt that she needed to do that, and so she granted the interlocutory appeal. We’ve just briefed the interlocutory appeal in the Ninth Circuit Court of Appeals, and we will be arguing that the first week of June. We don’t have an argument date yet, but because trial was delayed and because the emissions are continuing in We also filed a motion for a preliminary injunction asking the court to cease all new fossil fuel infrastructure projects, all new coal extraction on federal public landings.
We submitted 12 declarations from experts in support of that motion for preliminary injunction. The government responded with no evidence, which is unprecedented. You never respond with no evidence, but they had no evidence in response. And that motion is currently pending before the Ninth Circuit Court of Appeals.
Christophe Jospe: Wow. You left a lot to unpack there. And there’s so many things.
Andrea Rogers: This is the most complicated procedural case that’s probably ever happened. So for lawyers, you know, 90% of lawyers would never have seen the motions.
Christophe Jospe: We’re pulling all the tricks in the book. In your remarks, you used the word unprecedented twice. And I think precedent is a really important word when it comes to legalese and legal filings and proceedings, because if you’re doing something that hasn’t been done before, then how are you going to do it? And effectively, climate change is something that affects everyone. And we’re saying, hey, government, it’s your responsibility to do something about it because you’re I guess part two of this precedent question are what are the precedents that we can even pull that gives this some kind of legal standing?
Andrea Rogers: Yeah, the precedents that we look to as sources of inspiration, you know, not only as part of the climate movement, but also for legal precedent are cases like Brown versus Board of Education. And there you had, you know, it wasn’t the federal government that was the defendant. Those were state governments that were, you know, creating and implementing policies that resulted in segregated schools. In those cases, children, again, filed suits, again, And so it’s very important. Very similar to what we’re arguing in our case. The legal arguments, the constitutional arguments that we’re making are not novel.
What’s novel is the subject area. And also probably the scope of the problem is unlike anything we’ve ever seen before. And that’s why climate change has been so difficult for courts to grapple with in the past because it is so large. How do you get a grasp on how to handle it? So that’s one example. Other examples are prison reform litigation. So there’s been several cases where prisoners have alleged that they’re getting unconstitutional medical treatment and courts have come in and stepped in and corrected that. In Washington, our best example is the McCleary case, the school funding case.
And in that case, the Washington Supreme Court ruled that the legislature was not fulfilling their responsibility to amply fund public education. And ultimately, they held the legislature in contempt for almost two years until they came up with a plan that the court deemed was constitutionally compliant.
Ross Kenyon: Yeah, there’s... Yeah.
Andrea Rogers: Yeah, you know, there’s a lot of constitutional tort cases. And I think those are what’s most common, you know, like people who are injured by government actors, you know, whether it’s you’re shot by a police officer, you know, there’s a lot of causes of action like that or establishment clauses. Freedom of religion, freedom of press. There’s been a number of cases. There’s been a number of constitutional cases against the Trump administration for some of the policies. But it is unique in terms of, you know, and I think it’s because of the level of climate change, the impacts that we’re seeing.
You know, this is not environmental harm. This is, you know, we’re talking about the loss of entire parts of our nation. We’re talking about the loss of lives. We’re talking about the loss of the ability to do things.
Ross Kenyon: I want to ask about this, too, because many of the in the amended complaint, which you can read in the show notes, there’s listed a number of the plaintiffs and their various activities that would be curtailed or are already curtailed by climate change. One of my questions about this is, is what rights exist? Are those more like my example or are they somehow different?
Andrea Rogers: Yeah, well, it’s and we have a couple of different legal claims. And the legal claim is what dictates what kinds of injuries are cognizable. So we also have a legal claim that the federal government has violated the public trust doctrine, which is an ancient legal doctrine that says... The sovereign government holds essential natural resources in trust on behalf of present and future generations. And that means they can’t allow substantial impairment to those resources. So future generations of citizens needs to help. So some of our allegations in our complaint are about how they have been denied access to certain resources.
For example, Levi has been unable to go to certain beaches because they have eroded away because of that. Other plaintiffs have been unable to access CRAB on the Oregon coast if it’s, you know, if it’s not because of climate change impacts. So that kind of access is really relevant when it comes to public trust claim. But when it comes to the constitutional injury, that really reaches another level. And so you have to show what is an injury that rises to the level of a constitutional violation. And there’s a number of different examples of that.
Losing your ability to engage in certain activities that are critical to your life. Mental health impacts, that’s a huge part of climate change, particularly for young people, because they see that their government knows what’s going on, they’re experiencing the impacts, yet here’s the government doubling down on fossil fuels. And so it’s called institutional trauma. And these are real psychological impacts that often in court cases are recognized as being an injury that can be redressed by the court. And what’s important for the legal purposes is that the injuries need to be very personal.
You know, they have to be individualized and personal. They can’t just be an injury that everybody is experiencing. And so that’s why the individual youth stories of how they have experienced climate change are so important.
Ross Kenyon: I don’t mean for my example to have been dismissive or to minimize these things. If it sounds that way, I do apologize.
Andrea Rogers: No, no, I didn’t take it like that.
Ross Kenyon: Okay. Is the difference in that case perhaps because the resources that they’re expecting to be able to use presently and in the future are sort of the public is the steward of those, whereas something like your neighbor’s house color is something that is treated privately? Is that where the public trust doctrine fits in?
Andrea Rogers: Sort of. You know, what the public trust doctrine is about is about there’s certain resources that are common to all of us, right? And so that’s where the sovereign government controls those. You know, when it comes to decisions you make with regards to your private property, you know, those are highly protected under the law.
Unknown speaker: How do you have that example so ready?
Andrea Rogers: I have no clue. But if you have dead turtles that, you know, smell and, you know, you could still file a nuisance lawsuit against that person. But does that violate a constitutional right? Probably not, because you don’t have a constitutional right to just, you know, enjoy things.
Ross Kenyon: Got to get Nicolas Cage in there, find the lost Bill of Rights where the dead turtle protections are.
Christophe Jospe: So let me try to steer us away from the turtles and back to – well, so everything I know about government – I mean, I am a poli-sci major, but I watched a bunch of Schoolhouse Rock, so I feel like I got the checks and balances. There’s a legislative branch. There’s the executive branch and there’s the judicial branch. And this case seems to be a check on the balances of power and a check on the executive branch. But I want to sort of go to the liability question. So it’s saying the executive branch is liable here.
Why are you singling out the presidents and how are they liable?
Andrea Rogers: Well, the president is not a defendant in our case. We voluntarily dismissed him from the case for a number of different reasons. But his agencies and their agency heads are defendants. So we have a number of different executive branch agencies and our defendants are all agencies. They have to implement their authority in a way that complies with the Constitution. So they couldn’t issue a permit. They couldn’t pick a permit, say I’m going to issue a permit to an African American person and not a white person. That would be an unconstitutional choice that they made, right?
Because of equal protection laws. So they can’t make those decisions that are resulting in consequences. So one of the issues that comes up is fossil fuel subsidies.
Unknown speaker: And so you’re saying, just do away with those, which...
Andrea Rogers: No, it’s not that direct because the court will never direct the executive or legislative branch to do a particular policy. That’s not the role of the court. The court can just take a look at here’s the system as it is right now. And yes, it’s violating the constitutional rights of young people. You have to fix it, legislative and executive branches, but the court will not dictate how. And that’s really clear in the McCleary case that I mentioned that’s on the forefront of Washingtonians’ minds. The court never said, here is how you fund public education.
They just reviewed all of the proposals from the legislature and said, yay or nay. And so... And we also have evidence to show that these subsidies result in certain amounts of greenhouse gas emissions, which are in turn causing the injuries to the plaintiffs.
Ross Kenyon: Yeah. How much? Well, I don’t know how exactly to say this, but when I think about the common law traditions of the UK and then that we inherited in the United States, there’s a fair amount of trusting of judges in a somewhat decentralized capacity to make new decisions. Yeah. I’m sure the left thought that was a case of activist judges. And when gay marriage happened in California, I’m sure the right thought this was activist judges. Is this not their job is to create new doctrines and to sort of evolve in a kind of decentralized way?
Andrea Rogers: Yeah, that’s a really deep philosophical question as to what is the role of the judicial branch. And it has evolved in this country tremendously. And it largely depends upon which way is the court swinging. When you have a more liberal court, you will have judges who are much more willing to expand the notion of individual rights further. The right to privacy, Roe versus Wade, you know, that’s not written into the Constitution, but they have interpreted the Constitution as covering and protecting those kinds of activities, right? What we’re seeing now, though, is really a far pivot from that.
And the Rehnquist Court and now the Roberts Court, they are much more hesitant to apply the Judicial discretion in terms of interpreting the law. They are very much statutory and constitutional traditionalists. And so what the law says controls. And if it’s in any way ambiguous, They’re very hesitant to step in and fill the gaps. They only do that as a last resort. And that’s just the way that our law is shifting now. And whether that will affect our case, we’ll see, because our case, I think, raises some really significant questions about what is the role of the judiciary in policing the executive and legislative branches.
Christophe Jospe: We could go on for a really long time.
Ross Kenyon: Podcast listeners, this is mostly me indulging. I have a lawyer hostage right now, and I want to ask all the questions I want.
Christophe Jospe: I know, and we’re not even paying for this. It’s like free legal advice for the world.
Andrea Rogers: I’m out of here.
Ross Kenyon: This is a billable hour, Kristoff. It’s coming.
Christophe Jospe: I know. It’s okay. She was eight minutes late, and so I’m not counting those first eight minutes. I know you guys bill on that time clock. I just want to read some words from this here that sort of gives me warm and fuzzies because it’s like sometimes people say, Well, why would anyone want carbon removal certificates? It’s like, duh, there’s an unlimited demand for these because not unlimited, but people are going to need this as a form of adjudication. And it actually is spelled out here. Number seven, order defendants to prepare and implement an enforceable necessary.
And this court case can go in many different directions, but as far as I’m concerned, it’s already a success for even having spelled that out. Now, to your point earlier that the courts are not going to say, here’s how you must implement this plan, but Here, there is a framework in which to implement the plan. So let’s just, if you could sort of spell out how carbon removal and the phase out or decarbonization of the energy system might even work in terms of implementation of this. And let’s just say this succeeds because we know it well.
It’s only a matter of time.
Andrea Rogers: So in our case, we do have to show that our youth’s injuries are redressable. So we can show that we have to show that the court can make a dent on In the climate change problem. Or else if they can’t, then it’s not really a justiciable controversy that the court weighs in on because courts only deal with cases and controversies that they can resolve. So we have presented expert evidence. We have 21 experts, all of whom are donating their time pro bono on behalf of the youth. In a number of different disciplines, public health experts, we have pediatricians, we have mental health experts, we have ice melt experts, sea level rise experts.
Some of our experts are energy experts who have developed the pathways to get the United States off of fossil fuels. How do you do that? What are the policy mechanisms that need to be done? And so they have written expert reports and done the analysis to show that it is feasible to get the United States off of fossil fuels by 2050 in line with a trajectory of keeping carbon dioxide emissions down to 350 parts per million by the end of the century. And I don’t know if you’ve heard of deep decarbonization projects, if you’ve ever had that conversation on here.
It’s a number of different nations, including Washington State, has looked at how do you decarbonize the economy in order And that trajectory would be online with two degrees of warming, which would be devastating to humanity and would mean that all of our ice sheets melt. So it’s not a good target to have, but it’s a political target that international has been selected.
Christophe Jospe: I was a bit involved with that project when I was a grad student at Columbia and involved with the carbon capture side of some of the calculations that went into those estimations. And we got to work with Jeff Sachs and his sort of effort there. So very aware.
Andrea Rogers: It’s a cool project. One of our experts, his name is Jim Williams, and he’s with Evolved Energy Research. And he and his team have come up with and looked at whether there are pathways that are economically and technically feasible to get off of fossil fuels so that we can present that evidence to the court to show the court, yes, there are things that the United States government can do to redress the injuries of these children.
Ross Kenyon: If this were to succeed and you won this case, do you imagine that this precedent will be applied in other ways?
Andrea Rogers: Yes, absolutely. And we’re using it in other ways. So we have our case, Juliana versus United States, but we also have cases against a number of other governments, both state and internationally. So for example, we have a case against Governor Inslee. We’ve had a case against him since 2014, making very similar arguments. But instead, we’re focusing on the state’s control of the transportation and energy system. But we’re making very similar constitutional arguments.
Ross Kenyon: What about outside of the environmental space? Do you think someone could say, I’m not sure if the government involves itself in firearms or guns in the same way that they do for fossil fuels, but could someone say that gun violence involves a failure to protect in the same kind of way? Or since that’s protected by an amendment, maybe that’s just not possible?
Andrea Rogers: Yeah, absolutely. You can make those claims. But again, yeah, you have the Second Amendment, which is a challenge when you’re dealing with guns. But the Parkland... Kids and the movement they’ve done, they’ve been very interested in learning about our legal theory and figuring out if there’s a way that it can be used. And, you know, there’s been a number of other institutional reform cases, sort of a moniker for these kinds of cases that are challenging these big system-wide problems. And what people don’t remember is that, you know, in the civil rights movement and other major Social issues that we’ve dealt with.
It’s never just two branches of government that weigh in on it. It’s all three branches of government get in and neither one solves it on its own. But some of these problems are so entrenched and so difficult to solve that it cannot just be the executive. It cannot just be the legislative. All three branches of government need to come together. And make sure that the democratic system of government that we have is moving forward and ensuring that our system survives. So that’s what, you know, we’re focusing on the judicial aspect because we’re lawyers and that’s what we do.
But it’s really exciting to see the movement. I mean, look at the climate, the youth climate strike that happened on the 15th last Friday. I mean, millions of students across the world were striking. You have kids in the legislature advocating for policies. You have the Green New Deal in the You have other, you know, there’s all of these other solutions that are out there. And, you know, we’re hopefully going to be making some progress to start protecting our children. Because one challenge with climate change is that there is such a thing as Dr.
Justin Marchegiani Yeah.
Ross Kenyon: Well, Kristoff, you look like you’re researching something over there. Do you want to jump in or you want me to go?
Christophe Jospe: I wanted to just pull up something because I think we’ve talked about this before. If we haven’t, let’s say that climate change is a wicked problem. Some even have gone as far as to say. Oh, Jimmy Gio, I think we did, yeah. I think we did. And then we said... Well, it’s a super wicked problem. And I was just quickly pulling up to make sure that I had all of the characteristics of the wicked problem. And there are different definitions where the problem is not understood until after the formulation of a solution.
Wicked problems have a no stop. I don’t know if I agree with that. And wicked problems have no given opportunity. We could go on and do a whole episode about wicked problems, but introducing this element of time makes it one of the super wicked problems. And also you have asymmetrical information. You have people who have favorite solutions or certain paths. And so you’re dealing with all of these really hairy problems. But I just kind of want to, in rounding out and closing up this episode, I want to comment on something you said, which is...
The youth, like people are angry and maybe a lot of the current status quo is jaded and like, oh, nothing’s going to change. And they couldn’t be more wrong. Like this is just the tip of the iceberg. This is just the beginning. I think what this case embodies is a creative way to actually create change within the institutions that are supposed to serve and protect us. And it’s only going to keep going. I don’t know if you had a question, but Andrea, I want to just pass it back to you if you want to give us any final words.
Ross Kenyon: Yeah, I did tell you I had a question. Yeah. Oh, okay.
Christophe Jospe: Well, then make numbers of snafus on this podcast. That’s what we’re doing, right? Go ahead, Ross.
Ross Kenyon: I’m not even sure if we should, but I want to talk more about basically the philosophical aspects of what you were talking about with the judiciary. And one of the criticisms of something like this, I’m sure gets claimed in a kind of ironic way that this way of developing policy is anti-democratic. You have this high elite of Supreme Court justices. I imagine no matter who loses the cases, it’s going to get appealed all the way up to the Supreme Court because it’s that big and that important. I don’t particularly like stuff that comes out of...
I tend to roll my eyes at typically until proven otherwise. I think it’s like there’s a lot of regulatory capture. I think there’s a lot of pandering to people who probably don’t know any better. Executive faces its own sort of political movements that aren’t always necessarily. I think this might be better than something like a Green New Deal or something else that I have a little bit less faith in personally.
Andrea Rogers: Yeah, you know, the judiciary is a bulwark. It’s a bulwark to protect our individual constitutional rights. And that’s what our founders, that’s why our founders did this. They created this system to prevent tyranny. And, you know, that’s their job. Yeah. And that integrity of the judiciary is so important because it’s such a special part of being of America. We are very lucky to be able to go to court to protect your individual rights. Not many countries can you do that. And can you have faith that you have an independent judiciary?
And I think Justice Roberts was really clear about this when he responded to President Trump by saying there’s no Obama judges, there’s no Trump judges, there’s no Bush judges, there are federal judges who are doing their best to honestly interpret and apply the law. And we continue to have faith in that, as do our youth. And I think they recognize that the time is right for their voices to be heard.
Ross Kenyon: Yeah, I think all the procedural drama signals that the longer they can delay this, the people that you’re suing, I mean, the defendants, the better off they’ll be. It seems like maybe there is a little bit of fear there.
Andrea Rogers: I hope so, because they know that when we get into the courtroom, we win on the facts. They do not have the facts to contest us. They’re not contesting any of our scientific evidence. They’re not contesting our ice melt experts, sea level rise. They’re only contesting, they’re only arguing that these children are not being harmed any differently than anybody else. And they’re contesting what our energy experts say is economically and technically feasible. That’s their defense.
Ross Kenyon: I’m going to allow it to go a couple more minutes. Can you explain those two objections? Can you overrule if there’s a constitutional right to a stable climate? And can that be overruled by an economic interest or a technological interest?
Andrea Rogers: Well, if you have a fundamental right, the only way that government can infringe upon that fundamental right if they have a compelling reason to do so. But in our case, the government has presented no evidence to show that the federal government has a compelling interest in pursuing fossil fuels because they don’t. It’s to our economic disadvantage. It’s killing the world. They have no evidence to show that fossil fuels have to be used at this point in time. We have a lot of evidence of a million different opportunities where the federal government could have transitioned off of fossil fuels to renewable energies, and they turned their back instead of going down that path.
So the evidence just doesn’t support that.
Ross Kenyon: If you were to lose this case, on what grounds would you lose it?
Andrea Rogers: I think our challenge in this case is it comes down to two main issues, standing, whether these youth can show that they’re being personally injured in a way that’s different than other people, and whether the So the United States is responsible for about 25% of cumulative global emissions of carbon dioxide. So we’re about 25% responsible. So there’s other parties that are responsible for this problem. So can the government be held accountable? Our legal theory says, yes, you know, they’re by and far and away substantially responsible for the situation that we find ourselves in.
The other main question is, again, whether the courts will accept their role to review the executive and legislative actions in creating our energy system as being unconstitutional. Will they find that’s within their role? And we think it’s clear since it’s their job to interpret and apply the constitution, but it’s that separation of powers question that will be very live in our case.
Christophe Jospe: What I love about this is whether we want to admit it or not, it’s very obvious that the only way to solve climate change is to make freely dumping CO2 into the atmosphere illegal. And if you want to do it, then remediate it, pay to pull it back. And the truth is, There is enough capacity to pull it all back. And what I also like about this is even though the government is going to make a lot of errors in fighting this for the wrong reasons to try to delay and do all of this fancy legal footwork that people, I just wish that didn’t exist.
And this is part of my issue with law. And, you know, I also, I like, I believe in the government. I’m wearing American flag socks today, actually.
Ross Kenyon: This was important. That’s all it takes.
Christophe Jospe: Yeah. No, but I did have a point there. May have diverted it a little bit. And the point is this, the government is not necessarily the problem here. They just need a way to remediate the whole solution and to be held accountable by the youth. And it seems like that’s what we’re sort of doing. And there are a lot of mic drop moments coming up in this case. And so can I let her round it out now, Ross?
Ross Kenyon: Yeah, sorry. Sorry, I scolded you. I had more I wanted to ask.
Christophe Jospe: Oh, no, that’s fun. You’re good. You’re cleared. Close it out. It’s very clear. Andrea, we’re going to have to have you come back sometime after June, and we’d love to know sort of what happens then. Yeah, please update us. But, you know, our listeners are all jazzed up. They want to do things. How can they support this case? How can we blow even more life into the efforts here? How can people get involved?
Andrea Rogers: Yeah, well, youth can sign on. To amicus briefs that go to the court to support the case and that’s at joinjuliana.org. And then there’s also please come to our hearings. I think it’s really important for the courts to see that people are interested in paying attention to this case. Also, you know, like I said, all of our experts donate their time, which is really remarkable because they’re at the top of their fields and they’re donating their time to provide these youth with expert support. And then a number of other people also volunteer in countless ways to provide them the support.
We need to remember that these are children, you know, and they’re in a very, very difficult position. They are essentially fighting for their lives and they’re fighting against the strongest government in the world. And we need to support them because it’s very difficult to do that. You know, they could be out there playing video games and going to lacrosse practice, but they are focused on being climate activists and protecting their lives. And I’m very honored to be able to provide them the legal support and, you know, the community has been wonderful so far in providing that support because they need it.
We’re in it for the long haul with this case.
Ross Kenyon: Great. And you can also listen to No Ordinary Lawsuit, which is a great podcast. If you want to be kept up to date on updates for this lawsuit, that’s the best way to do it. And also, what is the website again that we should?
Andrea Rogers: It’s joinjuliana.org or ourchildrenstrust.org.
Ross Kenyon: And we’ll put a link up there because Our Children’s Trust is where I found that the original, the amended complaint that we referenced so many times, one of the original, if not the original document that was submitted. So we’ll put all of that in there. Thanks so much for being with us, Andrea. That was very good, very different from other shows. If you like what we’re doing, please subscribe, tell your friends, rate us on iTunes, write us a review. All of that would be very helpful and help us get the word out about carbon removal, Reversing Climate Change and other innovators working to fix these problems.
So thank you so much for listening.
