Climate change: Biden, give children their day in court

Many American laws contain opening passages with “statements of congressional intent” — short explanations of what Congress hoped a particular law would achieve.

They express Congress’s best intentions. Some codify moments of moral clarity lawmakers want to preserve in statutes.

However, one notable absence today is moral clarity about global climate change. Even as the climate deteriorates almost everywhere, Congress has never passed a significant law to limit the principal cause, fossil-fuel pollution. The Clean Air Act allows the government to regulate several “criteria pollutants,” but the most damaging greenhouse gases are not among them.

The United States entered an international climate treaty in 1992, but despite some promising moments and notable exceptions, Congress acquiesced to an aggressive campaign by oil companies to persuade Americans that climate change is not real, or at least not as big a deal as the world’s scientists claim.

Congress has clearly expressed itself on environmental protection more generally, especially in its flagship law, the National Environmental Policy Act (NEPA) of 1970. Its opening statement reads in part, “it is the continuing policy of the Federal Government … to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.”

Three things stand out: “Productive harmony” with nature is critical to our well-being, it is an ongoing responsibility of government, and we must maintain it for future generations.

This raises two important questions: What exactly is the present generation’s obligation to the future? Is the federal government fulfilling that obligation in regard to climate change?

As I wrote a year ago in a different venue, “There are 6,653 words in America’s most important founding documents: the Constitution, Bill of Rights, and Declaration of Independence. The words children, future, and generations are not among them. The idea of protecting unborn generations is implied only once, where the Preamble of the Constitution says the document’s purpose is to ensure tranquility and promote the general welfare of “ourselves and our posterity.”

Jovan Kurbalija, Ph.D., an expert on international law, points out the rights of future generations have evolved from a philosophical and moral issue to a political and legal issue because no previous generation has been so threatened by existential crises. He suggests intergenerational rights consist of three parts: physical survival, human dignity and the ability to use our creative potentials — the inalienable right the Declaration of Independence calls “the pursuit of happiness.”

President Theodore Roosevelt wrote that the right to natural resources (he was talking about wild game) extends to future generations “within the womb of time.”

“Our duty to the whole, including the unborn generations, bids us to restrain an unprincipled present-day minority from wasting the heritage of these unborn generations,” he wrote in 1916. Today, the sin of waste extends to natural resources like those required for a livable planet — healthy soils, oceans, air, water and so on.

Several states — Pennsylvania, Montana and Massachusetts, for example — have established the inalienable legal right of unborn generations to a healthy environment. Montana’s constitution says, “The state and each person shall maintain and improve a clean and healthful environment … for present and future generations.” It orders its legislature to protect “the environmental life support system from degradation.”

Hawaii, Kentucky, Maine, New Mexico, New York, Oregon, Washington and West Virginia are creating similar constitutional protections. A movement called “Green Amendments for the Generations” is pushing for all states to establish similar rights in their constitutions.

On the federal front, a group consisting of 21 children and young adults has been fighting its way through the federal court system for nearly seven years to establish that young Americans have a constitutional right to a future without catastrophic climate change. Their lawsuit, Juliana v. US, has spanned the Obama, Trump and Biden presidencies. More than 80 million Americans who are 19 years old and under, plus untold future Americas, would benefit from such a right.

With the help of a brilliant soft-spoken attorney Julia Olson, the Julianas are engaged stubbornly in an asymmetrical war against a legal goliath, the U.S. Department of Justice. But like its predecessors, Biden’s Justice Department appears to be doing everything in its power to prevent the lawsuit from going to court. For one thing, the oil industry and others engaged in the long misinformation campaign about global warming could be put on the stand where misinformation would be perjury.

The case has implications for current and future generations far beyond the United States. Last year, the United Nations Children’s Fund reported that half the world’s 2.2 billion children live in countries at extremely high risk from global warming. Psychologists say they see evidence among children of post-traumatic stress disorder (PTSD), depression, anxiety, phobias, sleep disorders, attachment disorders and substance abuse resulting in problems in cognition, learning, behavior and academic performance.

Presently, two excellent documentary films — “The Power of Big Oil” and “Youth v Gov”  — show the history of the oil industry’s denial campaign and the Juliana lawsuit, respectively. Both provide important context.

However, the Julianas deserve more than a documentary. They deserve their day in court, where they could put the government and oil industry on the stand. They also deserve a direct response from President Biden. He should let their lawsuit go to court or explain why he won’t. With his climate plan stalled in Congress, you’d think he’d welcome the chance, however small, that the courts would come to the rescue.

William S. Becker is a former U.S. Department of Energy central regional director who administered energy efficiency and renewable energy technologies programs, and he also served as special assistant to the department’s assistant secretary of energy efficiency and renewable energy. Becker is also executive director of the Presidential Climate Action Project, a nonpartisan initiative founded in 2007 that works with national thought leaders to develop recommendations for the White House as well as House and Senate committees on climate and energy policies. The project is not affiliated with the White House.