By Kara Budge
Harrison Epstein - Standard-Examiner and Daily Herald | Nov 7, 2022
The legal non-profit, Our Children’s Trust was formed with one ambitious goal: to bring lawsuits on behalf
of young people and force federal and state governments to address climate change. They have brought suits in
all fifty states but only one has gone to trial and that was this month in Montana, those Plaintiff’s won.
A couple of weeks ago I was meeting with students at my school and met Natalie, who told me she is involved in
a lawsuit and that she is working with Our Children’s Trust, suing the State in Natalie R. v. The State of UtahShe and another West High student along with four other minor plaintiffs and their parents sued in March of 2022.
In the complaint, plaintiff’s argue that state laws have been “systematically authorizing fossil fuel development in
Utah '' through state agencies. Utah Code §§ 79- 6-301(1)(b)(i), 40-10-1(1), 40-10-17(2)(a), 40-6-1, 40-6-13The defendants’ fossil fuel policies have had a direct negative impact on the health and development of the
plaintiff youth. Plaintiff’s cite many examples such as asthma, headaches, respiratory issues, coughing, loss of
ability to recreate outdoors, and mental issues such as stress and anxiety. They go further stating their lives are
being shortened due to the defendants’ fossil fuel policies which are being made knowing full well the negative
health impacts they bring to residents. Plaintiff’s cite the Utah State Constitution, Article I, Sections 1 andstating that by systematically authorizing fossil fuels, they violate their rights to life and to “be free from
government conduct that substantially endangers their health and safety”.
In November 2022 Judge Faust granted the State’s Motion to Dismiss. Noting in his written decision that
“Plaintiffs have a valid concern,” the judge cited the political question doctrine, redressability, and substantive
due process as issues informing his decision to grant the state’s motion. On January 3, 2023, plaintiff’s filed a
Notice of Appeal and on March 10, 2023, the Utah Supreme Court, rather than the Utah Court of Appeals, retained
the appeal filed by the seven Utah Plaintiff’s. This is rare and recognizes the case’s constitutional significance.
Last week the youth plaintiffs filed their opening brief to the Utah Supreme Court explaining why their case
should go to trial. Montana has been the only case to go to trial and now there is a real possibility that Utah will
be next.
Considering that in the twelve years of Our Children’s Trust, only one state has gone to trial, one could ask why
they have not had much success and why Our Children’s Trust is holding governments rather than the fossil fuel
industries accountable and why they are using young people to bring forth these claims. I look forward to
following this case to see if youth can be the change they want to see in their future.
By Harrison Epstein - Standard-Examiner and Daily Herald | Nov 7, 2022
Citations:
Bancroft, Kaitlyn. “Is a Healthy Environment a ‘Fundamental Right’? Utah Supreme Court to Hear Climate Case.” Deseret News, 17 Mar. 2023, , https://www.deseret.com/utah/2023/3/17/23644462/healthy-environment-fundamental-right-utah-supreme-court-to-hear-case. Accessed 26 Sept. 2023.
Epstein, Harrison. “Utah youth in court to argue climate suit; state asks for dismissal.” Standard Examiner, 7 Nov., 2022, https://www.standard.net/news/environment/2022/nov/07/state-asks-for-dismissal-in-youth-led-climate-suit. Accessed 26 Sept. 2023
“Children’s Rights.” No Ordinary Lawsuit. 16 July, 2019, www.noorrdinarylawsuit.org.
Natalie R v. State of Utah 2022 WL 798331 (Utah Dist.Ct.3/15/2022) (Trial Pleading)
“Youth v. Gov UT” Our Children’s Trust. 26 Sep. 2023 https://www.ourchildrenstrust.org/utah.
Utah Code §§ 79- 6-301(1)(b)(i), 40-10-1(1), 40-10-17(2)(a), 40-6-1, 40-6-13
Utah State Constitution, Article I, Section 1
Utah State Constitution, Article I, Section 7
This is so fascinating! I had heard of the case in Montana but did not know that there were cases in all 50 states, including Utah. It would seem that there is a movement to push clean energy and acceptance of the threat of climate change through the courts, since there seems to be little movement in the legislative branch. This seems to correlate with Harley’s post last week about the suit against the state related to the Great Salt Lake.
ReplyDeleteI did find it interesting when I reviewed the Utah Codes that you listed, that the most recent one Utah Code 79-6-301 – effective 5/3/2023 – is the only one of those to mention to clean energy sources, and even then it is second to “nonrenewable” sources.
“(1) It is the policy of the state that:
(a) Utah shall have adequate, reliable, affordable, sustainable, and clean energy resources;
(b) Utah shall promote the development of:
(i) nonrenewable energy resources, including natural gas, coal, oil, oil shale, and oil sands;
(ii) renewable energy resources, including geothermal, solar, wind, biomass, biofuel, and hydroelectric;”
I wonder if this is in direct response to this lawsuit, and the attempt to fend off future suits with the same claim? It will be very interesting to see how the Utah Supreme Court rules.
Thank you for the post, Kara. Lawsuits surrounding these significant environmental issues (clean air, clean water, etc.) will be interesting to follow in the coming years. The Montana suit you site and the pending Utah suit mentioned in your post remind me of our discussion in Professor Dryer's class. However, state governments are filing lawsuits against energy companies in those cases. States are now calling on these companies to "pay to abate the harm" their products have caused the environment (https://oag.ca.gov/news/press-releases/attorney-general-bonta-announces-lawsuit-against-oil-and-gas-companies).
ReplyDeleteBoth the Held v. Montana case you reference and the initial allegations made against the oil companies by the states claim that both the state and the oil companies have known about the dangers of air pollution or climate change for over 50 years. Held asserts Montana has been aware of the risks of air pollution since 1968. Likewise, California's Attorney General alleges that the oil companies have known that burning fossil fuels would "warm the planet and change our climate" since at least the 1960s.
Some reporters have found old memos. I am sure the attorneys opposing the energy companies would love to get ExxonMobil's internal global warming projections admitted into evidence (https://www.science.org/doi/10.1126/science.abk0063). How many more documents, reports, metrics, memos, briefs, studies, etc., of this sort exist? How many have probably been destroyed in recent years? What, if anything, could a judge do if that evidence was destroyed? Also, since these documents and the alleged knowledge either the states or the oil companies had can be traced back to the 1960s and 1970s, how might any statutes of limitations affect these cases?
Regarding the possible destroyed evidence, I feel like it is absolutely plausible and disheartening. It looks like there are many lawsuits focused on the fossil fuel industries but they get nowhere without the state granting access and permission which is why it looks like these cases are focusing on state and federal governments, sort of a focus on the root of the problem. It has felt so difficult to get away from those resources, but more and more I am excited to see renewable energy sources showing up despite what they are up against. I just hope we aren't too late.
DeleteToday's kids have the most at stake - their future.
ReplyDeleteI remember growing up watching Jacques Cousteau on PBS. There's a documentary on Disney called Becoming Cousteau. It pretty much shows how his naiveness brought about destruction of ocean ecosystems, and how he observed what he did. The rest of his life was dedicated to right the wrongs he helped commit. I used to go snorkeling and spearfishing at least once a week when I was in high school. When I have gone back to Maui, the same reefs I frequented are not the same. They are no longer vibrant with color and the fish are scarce even in places that are hard to get to. Pollution and overfishing are to blame - the people are to blame.
To answer your questions, I have to say that the right amount of the "right" people have to die from pollution and climate change. People of wealth and influence have to be affected and/or the masses have to care. Sadly I do not think we are anywhere near that.
I remember growing up and seeing accident after accident at the intersection of Makani Rd. and Haleakala Hwy. There must have been at least twenty fatalities before a traffic light was put up. I saw the same happen in Enoch, UT at the intersection of Midvalley Rd and Minersville Hwy. They put up a round about instead. Although, too many people in Iron County don't know that the round about goes one way.
There's no statute of limitations of murder and manslaughter. Is there enough to prove that companies recklessly cause the death of another individual(s)? For example, would someone with cancer that can be directly linked to pollutants from a company that has knowledge that their pollutants cause such cancer be enough to satisfy Utah Code Criminal Code 76-5-205?
To the note regarding statute of limitations, it would be hard to say that fossil fuel companies are to blame. Ever since we learned that wood and coal could be used to power heavy machinery or generate electricity (so, well over 100 years now), one could argue that the use of those fuels was actually for the betterment of the public welfare in the long term--even if folks who burned coal died at disproportionate rates to those who burned wood. Even in the cases of today, "convenience" is what is truly being pitted against the health of the younglings, ourselves, and our older family members. So long as it would inconvenience ourselves more to be fully "done" with non-renewable energy sources, we'll keep having to fight against the chains that "convenience" binds society with.
DeleteThanks for the great read, Kara.
ReplyDeleteI was surprised to learn that part of Judge Faust's ruling to dismiss was based on the rationale that "the fundamental right to due process under Utah's Constitution can never apply if the harm to your life, liberty, or property involves fossil fuels." Why does including fossil fuel interfere with due process under Utah's Constitution if fossil fuels impact the fundamental rights of life and liberty? I assume is part of the plaintiff's appeal to the Utah Supreme Court.
I believe that the Held v. State of Montana decision established a significant legal precedent for climate change actions and similar lawsuits, such as Natalie R. v. The State of Utah. The fact that these two cases share similarities, and Montana ruled in favor of the plaintiffs, proposes a compelling rationale for Utah to take a similar path, recognizing the constitutional rights to life and liberty.
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DeleteI agree, it is a bit of a reach for Judge Faust to discount fossil fuels from violating fundamental rights. I know the plaintiff's thought it would just go to an appellate court and were pleasantly surprised that it was going to the Supreme Court.
DeleteThe Montana case centers on a provision that was updated in a rewritten constitution in the early 1970's that requires the state to provide a "clean and healthful environment for present and future generations" which made Montana a wonderful place to litigate their case. It goes further to call on the legislature to provide for this. I hope the Utah plaintiff's are able to make a strong enough case based on our state constitution.
I was so excited when I first heard about the victory in Montana! I don't want to be pessimistic, but I don't see the case in Utah going the way of the Plaintiffs, but who knows maybe the Utah Supreme Court will surprise us. Montana in their state constitution has a clause that states citizens are granted the right to environmental protection and I don't see Utah anytime soon adopting such language or lessening our usage of fossil fuels. In fact in 2022 we hit an all time record for state output! (woo-hoo *sarcasm*) https://www.eia.gov/state/analysis.php?sid=UT#:~:text=Utah%20accounts%20for%2015%20of,in%20the%20Rocky%20Mountain%20region.
ReplyDeleteI do believe that Gen Z will change the future and I want them to continue to fight for it.
I got on to a podcast that seems to have trailed off after about 4 episodes, but they followed Our Children's Trust for a bit and I found it interesting that they compared their efforts to the efforts of Civil Rights leaders in Brown v. Board. Leaders had been fighting the civil rights battle for some time and were losing constantly. But it took one case, and it was a case that involved children to finally gain traction. They argued that because it turned into a "children's rights" issue, that got things done and they are hoping to see the same with youth plaintiff's.
DeleteThank you for spotlighting this case. I think there are some very intriguing questions of Constitutionality with this. I also think that going after the government makes sense and could be a great way to force change through government regulation.
ReplyDeleteI was going to mention it but it looks like Leigh Ann beat me to it but Montana has some very unique clauses in their constitution.
Article IX. Section 1. (1) The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations. (2) The legislature shall provide for the administration and enforcement of this duty. (3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources. Mont. Const. art. IX., § 1.
Yes! I posted on Harley's before I read these comments, I'm glad you saw that. Certainly an easier case to make with that verbage. That was updated in the early 70's so it isn't all that old. I am skeptical that the Utah case can make as strong of an argument with what they have to work with. Should take some skilled persuasion.
DeleteThank you for the reading recommendation!
ReplyDeleteUgh, you point out how easy it is to be a hypocrite in environmental matters! I am guilty of choosing convenience and my present needs over the sustainable paths. I don't have simple answers for this, and it is easy to feel like your efforts don't matter in the grand scheme of things, but I always try to do better where I can and support ideas that lead us to a cleaner path, especially moving forward. You make some very valid points, I am also very grateful for ambitious youth who are trying to hold us accountable and do better.