by Bruce Dunlavy              (My blog home page and index of other posts may be found here.)

In two earlier posts (here and here), I have celebrated the work of climate-change activist Xiuhtezcatl Tonatiuh Martinez as a resurrection of the commitment and courage of the youth of The Sixties.  Since childhood, Martinez has been a strong and perceptive voice for the young people who will inherit the earth of 2030, 2060, 2100, and beyond. In 2014, at the age of 13, he was one of five kids who, along with two non-profit organizations, sued six Federal executive-branch agencies for failure to provide protection against climate change.

The suit was backed by testimony from notable figures in the community of climate change activists, including James Hansen, one of the earliest voices to publicly call attention to the crisis when, as a NASA scientist, he testified before the U.S. Senate in 1988.  The lawsuit failed when the U.S. Court of Appeals for the District of Columbia ruled that the atmosphere is not a public trust. Hold that thought: the court ruled that the atmosphere is not a public trust.

Xiuhtezcatl Martinez (Image credit: Rolling Stone magazine

Speaking for his generation, Martinez told the courts at that time, “We have a say in the kind of world we are going to inherit.” That statement was more than just an expression of commitment. It was a demand. The first step toward affirming, seizing, and exercising any right is to proclaim that you have it. These young participants have learned well the lesson taught by Frederick Douglass: “Power concedes nothing without a demand.”  You must know what you want, and you must demand it. It will not be given freely out of generosity.

Julia Olson, attorney for the plaintiffs in the case, succinctly expressed the basis of the lawsuit: “The purpose of the public trust is to protect critical resources that the public relies on for its very survival and welfare.”

The basis of this case and others like it is the “trust doctrine,” which stipulates that public property is held by the government in trust for the people at large. This includes the responsibility to provide stewardship of the resources held in trust so that public property is used, first and foremost, in the public interest. It is the same doctrine that gives government the responsibility for wildlife, as noted in an earlier post.  Government is merely the steward of natural resources; the actual ownership of those resources belongs to the people as a whole.

The history of this doctrine is replete with cases in which government stewardship has been applied successfully to public waters, stretching at least as far back as the Rivers and Harbors Act of 1899, and its antecedents can be traced to Gibbons v. Ogden,  the 1824 U.S. Supreme Court case confirming Federal authority over State laws regarding interstate commerce. The Clean Water Act of 1972 established that everyone has a fundamental right to clean water, and that it is within the authority of the government to ensure the preservation of public waters. However, as noted above, the courts have yet to extend the trust doctrine of stewardship from waters to the atmosphere (and, by the consequence of the emission of air pollutants, to climate influences).  It is certainly time they did.

President Barack Obama has called climate change “a serious threat to global security”  and has just announced his Clean Power Plan, which uses the aegis of the Clean Air Act to reduce carbon emissions. Nevertheless, concerned citizens fear his response is neither big enough nor rapid enough. In addition, U.S. Senator Rob Portman (R-OH) has proposed a budget amendment that would make any State’s compliance with Obama’s Clean Power Plan optional at each State’s discretion.  Portman’s State, Ohio, last year became the first State to retract implementation of its existing renewable-energy mandates, and the State’s  Environmental Protection Agency has filed a 170-page submission in opposition to the Clean Power Proposal, thus demonstrating that States cannot be trusted to adhere to their own environmental controls plans, let alone those of the nation as a whole. [Full disclosure: I was employed by Ohio EPA from 1973 to 2002.]

This month, a new lawsuit was filed – by a group including Martinez, Hansen, and other plaintiffs in the 2014 case – in U.S. District Court in Oregon to force the Federal government to reform policies which promote the use of fossil fuels to the detriment of the public atmospheric trust.  Martinez is lead plaintiff in the case, Xiuhtezcatl Tonatiuh M. et al. v. the United States of America et al., and Hansen has submitted a thorough and comprehensive statement as part of the plaintiffs’ testimony.

Will this case advance further than that of two years ago? My guess is that it will, but it is unlikely to result in an immediate breakthrough in the legislative blockade that has frustrated action on climate change. But success – especially in legal battles that address fundamental issues rather than individual conflicts – is not measured by whether a given case achieves its stated goal.

No single case resolves matters of significance in one huge leap. Resolution is achieved by the accrual of small advantages in the steps along a ladder of precedent cases. The recent case of Obergefell v. Hodges, which affirmed the right to same-sex marriage, could not have been won without relying on such decisions as Loving v. Virginia (1962) and Lawrence v. Texas (2003), which affirmed the rights to interracial marriage and homosexual behavior, respectively.

As noted above, what has held back cases seeking to ensure pubic protection of the atmosphere has been the courts’ refusal to affirm that the atmosphere (and, by extension, protection from the harmful effects of climate change) is a public trust.  But, at long last, in June of this year, eight young people won a suit in the State of Washington requiring that State’s Department of Ecology to develop a scientifically rigorous policy to reduce carbon emissions in order to protect the environment for future generations.

This is exactly the sort of incremental progress, legal case by legal case, that must ultimately lead to a mandate that the government own up to its stewardship of the entire environment – water, air, land, climate – that it is entrusted with by the people. Andrea Rodgers, attorney for the plaintiffs, delineated the groundbreaking nature of the case’s outcome:

“The effect of this decision is that for the first time in the U.S., a court of law has ordered a state agency to consider the most current and best available climate science when deciding to regulate carbon dioxide emissions. The court directed [the Washington Department of] Ecology to apply the agency’s own findings that climate change presents an imminent threat to Washington and demands immediate action. The ball is now in Ecology’s court to do the right thing and protect our children and future generations.”

Denying the reality of climate change helps no one in the long run, and the danger of subordinating science to political authority is documented in a post that can be viewed here.
Climate-change activist, spokesperson for youth and the future, musician, public speaker, writer – there is no question that Xiuhtezcatl Martinez is a young man to watch. More importantly, though, he is a young man to listen to, to support, and to encourage. The future is at stake, and the inheritors of that future are already taking on the job of saving it. The least we can do is help them.

If you enjoyed this post, please see these previous ones: