Three judges in the 9th Circuit are poised to rule on the leading question in environmental litigation: the legal right to a livable climate.
Unlike the early decades of U.S. climate action, which focused on legislation and federal agencies, environmental advocates in recent years have increasingly had to rely on states and the courts to demand progress. The 2005 court ruling in Massachusetts v. EPA recognized that sea level rise injures coastal states and required the EPA to regulate greenhouse gasses as pollutants. More recently, cities like New York and Boulder filed suit against Exxon Mobil for their role in the climate crisis. In 2015, youth petitioners brought what may become the flagship climate case of our time against the President and government of the United States. Juliana v. United States alleges that government inaction is denying young people their right to an inhabitable planet. Juliana relies on a long history of public trust doctrine that requires the state to responsibly manage resources held in trust for the public, and advances a new field of “atmospheric trust” litigation. Colorado-based youth climate organization and CEA ally Earth Guardians is a lead plaintiff in the case.
Thus far, the government has filed numerous procedural challenges seeking to have the District Court throw out the case, or for higher courts to intervene. The case has cleared most of these procedural roadblocks, and the higher courts, although expressing some skepticism about its overall viability, have allowed the case to proceed.
Most recently, the government filed an appeal to the 9th Circuit to review the plaintiffs’ standing to bring a case. The question of standing often determines the fate of environmental litigation. For example, one of the key hurdles states cleared in Massachusetts v. EPA was the lack of direct injury due to the small amount of state-owned land that would be affected (the Supreme Court ultimately found that climate change represented a sufficient threat to state sovereignty to give them a claim to injury). In this case, the question of standing challenges the core of atmospheric trust doctrine as the basis for a legal claim. Oral arguments were heard on June 4th.
Now the nation and the world waits to see whether the 9th Circuit will allow the case to proceed to trial by affirming Judge Aiken’s conclusion that the youth of this country have a cognizable legal right to a climate capable of sustaining human life.
Decision-making in economic and political systems tends to flow from purpose-built leadership positions. Large, unwieldy organizational systems typically endow key leaders, be they CEOs, senior appointees, or committee chairs, with the authority, the resources, and the messaging microphone required to steer the organization with relative ease. However, there are times when the entire organizational system requires an overhaul, and these times often demand that those outside of natural leadership positions take the wheel. Sometimes, when an entrenched organizational scheme requires top-to-bottom overhaul, rather than gentle guidance, those intended to lead must themselves be led. The world of energy finds itself in one such moment today, as seen at both the state and international levels.
Last week international leaders met at COP23, the second “conference of the parties” since the signing of the Paris Agreement. They were meeting to discuss what global climate policy will look like both before and after 2020, when the Agreement officially goes into effect. President Donald Trump’s announcement earlier this year that he plans to withdraw the United States from the Agreement set the tone of the discussions for the official US delegation. The message coming from the intended leaders was that the United States is drawing back from international climate obligations.
However, they were not the only Americans present in Bonn. An unofficial delegation of citizens traveled to the conference, also to represent the United States and to deliver a simple message to the rest of the world: we are still in.
This second delegation delivered the America’s Pledge Phase 1 report, detailing the efforts of committed citizens to uphold the standards agreed to in Paris in 2015, in spite of the federal government’s withdrawal. This comprehensive report discusses the success of the U.S. Climate Alliance (of which Colorado is a member and CEA is a proud supporter) and other coalitions that are dedicated to picking up the banner of climate action where the Trump administration has let it fall. This We Are Still In delegation, collectively representing more than half of America’s economy, detailed the steps they have taken to begin working from the bottom up to achieve the 2025 U.S. emissions outcomes asked for by the Paris Accords, and promised additional analysis in a Phase 2 report to be published in 2018. The members of this second delegation may have represented leaders within their respective organizations (mayors, governors, CEOs, board presidents and others), but when it comes to expressing the intentions of the American people as a whole, they are now required to lead from the outside.
As US climate leaders declared their intentions in Bonn, a smaller group of local activists met in Denver to deliver a petition to Xcel Energy at their local headquarters, asking the utility to take the next step towards the post-fossil fuel world. This group was led by 350 Colorado and the Colorado Coalition for a Livable Climate, which represents Clean Energy Action and 22 community, faith, and environmental organizations from around Colorado. Our requests included
the closure of all Xcel coal plants by 2030
the closure of all fracking gas plants by 2035
a commitment to convert to at least 80% renewable sources of electricity by 2030
completion of a study by the end of 2018 that explores how to achieve 100% renewable electricity in Colorado by 2030
The CCLC represents more than 100,00 Coloradans, and speaks to the expressed desires of many more. This petition represents the work of climate warriors across the state who believe that now is the time for Xcel to end their lifelong reliance on coal and natural gas. “Xcel Energy has a great opportunity to move away from fossil fuels and provide customers with the affordable, clean energy they’re demanding,” said Kevin Cross, a member of the Fort Collins Sustainability Group and a leader of CCLC. As American leaders announce our renewed commitment to the Paris Agreement in Germany, there is no better time for our electric utility to step up its commitment to providing cleaner, cheaper energy for our state.
These petitioners may represent many of Xcel’s ratepayers and workers, but they do not hold the reins of Colorado’s grid infrastructure. The petitioners are not the PUC commissioners, corporate officers, or shareholder representatives; they are not the intended guardians of the state’s power grid. Nonetheless, the failure of the intended leadership to responsibly weigh the consequences of our collective decisions requires us, like the representatives of the We Are Still In delegation, to lead from without.
On the same day, separated by an ocean and thousands of miles, two coalitions delivered two statements to which Clean Energy Action was a party. We recently asked our supporters to sign a petition to Governor Hickenlooper to bring Colorado into the US Climate Alliance, and we see the effects of those signatures in Bonn where Colorado is one of nine states fully committed to the coalition. More recently we asked our supporters to affix their names to the CCLC’s petition to Xcel, and our voices were heard loud and clear in Denver last week demanding a greener, more efficient future. Both efforts demonstrate that it is not only possible to exercise leadership from outside traditional positions of power, but sometimes it is necessary.
We thank the Colorado Coalition for a Livable Climate, the We Are Still Coalition, and the US Climate Alliance, but most of all we thank all of you who provide the citizen power that carries us forward.
David Pomerantz will be speaking about the shocking story of electric utilities’ knowledge and cover-up of climate change beginning half a centuryago. Clean Energy Action believes that it is critical that the public hear what Mr. Pomerantz has to say, so this event is free and open to the public. Please join us and invite others!
Tell our elected officials that the environment matters! April 29th, 2017 is the 100th day of President Donald Trump’s administration. Clean Energy Action is marking the day by joining with the People’s Climate of Colorado and countless other groups in a huge demonstration to highlight our recognition that climate change is real, that it impacts all of us, and that we are committed to solving it.
The PCM in Denver, along with other sister city marches, is happening simultaneously to the People’s Climate March in Washington. Like the Women’s March, the PCM will be a national show of resistance, resolve, and unity.
There are many ways to show your support for our planet:
Want to get more involved? Take this survey in order to register to be trained as an PCM Marshal, or check out these planning meetings in Denver and Boulder, and help us make sure the event is a great success!
The Climate March also needs financial support. Make a donation or purchase one of these awesome T-shirts, and put your dollars to work in defense of our environment.
You can also be a #climatehero and help spread the word on Facebook and twitter: #peoplesclimatemarch #denverclimatemarch
“Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”
–U.S. District Judge Ann Aiken
Last year, 21 youth filed a lawsuit against the federal government for violating the youngest generations’ constitutional right to life, liberty, and property through its part in causing climate change.
The U.S. government and fossil fuel industry moved to dismiss the lawsuit, but on November 10th, 2016 federal judge Ann Aiken denied this motion, affirming that the rights of the youth are at stake and allowing the case to go to trial.