US District Court Judge Robert L. Wilkins

U.S. District Court Judge Robert Wilkins heard the arguments on Friday in Washington, D.C., and is deliberating now on the question of whether young people can sue to compel their government to take serious measures to stop global warming.

Judge Robert Wilkins is familiar with discrimination, having been the plaintiff in a well-known driving-while-black case of racial profiling in Maryland.  But few of us are familiar with the concept of discrimination against future generations.  We grow easily indignant when living people are unfairly treated.  We grow confused when considering the injustice of depriving our grandchildren of a habitable planet so that we can drive our SUVs and fight our wars.  There’s no living person or group of persons we can point to as being wronged, unless perhaps it is the young.

Judge Wilkins is familiar with, and appreciative of, the role federal courts played in the U.S. civil rights movement.  But a case had been made that certain people’s Constitutional rights were being violated.  Whose Constitutional rights are violated by condemning young people to grow old on a damaged planet turning to desert and barren rock?

There may be an answer to that.  The Constitution’s purpose is to “insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the blessings of Liberty to ourselves and our Posterity.”  Surely there is a violation of the Constitution in making the earth uninhabitable for our Posterity.  But no court has ever arrived at that conclusion.

“Everyone has the right to life, liberty and security of person,” says the Universal Declaration of Human Rights, which under Article VI of the Constitution is the supreme law of the land.  “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family.”  How can we protect those rights for everyone, including the young and the not-yet-born, without putting everything we have into trying to preserve a climate in which humans can prosper?  How can the U.S. government fulfill its obligations to Native American nations while finally completing the destruction of their land along with everyone else’s?

Courageous young people filed suit a year ago against the United States Environmental Protection Agency, the United States Department of the Interior, the United States Department of Agriculture, the United States Department of Commerce, the United States Department of Energy, and the United States Department of Defense.  One would think being sued for ruining the earth’s atmosphere with greenhouse gases was not terribly desirable, but there was a mad rush by other parties to be added to the list of defendants.  These additional defendants succeeded in getting themselves added: Delta Construction Company Inc., Dalton Trucking Inc., Southern California Contractors Association Inc., California Dump Truck Owners Association, Engineering & Utility Contractors Association, and The National Association Of Manufacturers.

The National Association of Manufacturers openly claims selfish interests for being involved:

“NAM moved to intervene in this litigation, because the law suit, if successful, would have a dramatic effect on manufacturing processes and investments, increasing production and transportation costs, decreasing global competitiveness and driving jobs and businesses abroad. The litigation, which seeks a minimum 6% reduction in carbon dioxide emissions every year, would be devastating to the entire U.S. economy.”

NAM also says:

“The NAM’s members include many of the major oil, coal and natural gas producers, petroleum refiners, and petrochemical producers, as well as manufacturing companies that make the tools and components critical to such industries.  Id.  Obviously, immediate reductions—and eventual elimination—of conventional fuel use is a central business concern for these members of the NAM.”

So, this was the argument for joining the case: our profits would suffer.  Well, of course, they would.  The government would have to stop giving $11 billion a year or more to fossil fuel companies.  Arguably, the government would have to stop putting over $1 trillion a year into preparation for wars fought largely to secure fossil fuels.  Taxes would have to be imposed on carbon emissions.  But there would also have to be massive public investment in green energy, investment that could help companies become profitable in new ways.  Or it could not.  What’s guaranteed is that the current profit-making plans of these companies would suffer, while humanity would benefit.  We’re trained to think such conflicts don’t exist, that what’s good for Exxon-Mobil is good for all of us.  It isn’t true.  The oil companies are arguing for the right to ruin the atmosphere.

In Friday’s hearing, however, other arguments were advanced.  Three men spoke for the defense, one from the government, one from NAM, and one from the California interveners.  They did not dispute the reality and seriousness of global warming, which James Hansen called “apocalyptic” in Thursday’s New York Times. They did not claim ownership of the sky.  Instead they argued for democracy, the Constitution, the separation of powers, the right of the legislative branch to legislate, and the existence of the EPA as sufficient to answer the plaintiff’s claims whether or not the EPA was doing any good.

It was curious to hear the government’s defense of the rights of the legislative branch for a number of reasons.  First, the executive branch in recent years has been rapidly eroding Congress’s powers.  Second, the Constitution has been discarded when it comes to Congressional war powers, or habeas corpus, or much of the Bill of Rights.  Third, Congress almost never represents majority opinion in the country on any important issue, but is instead openly working for the legal bribes authorized by the Supreme Court as election spending — for which the Supreme Court has argued to protect the human rights of corporations.  To pretend that the legislative branch envisioned by the Constitution still exists is bizarre.  Fourth, immediately after the government’s lawyer rhetorically asked, “In a democracy whose job is it to take public actions of the first order?” he turned the floor over to the lawyer from NAM.  Where in the Constitution does it assign corporate lobbyists the duty to defend the government against popular petitions for redress of grievances?

The NAM lawyer said not one word about his clients’ profits.  Instead he proposed, among other things, that “national security” might require current levels of C02 emissions.  He was, of course, using a narrow conception of national security.  How secure is a nation that is losing its farmland and coastlines?  But, if the argument was to be made on behalf of the Pentagon, why not let the Pentagon do it?  Why allow the oil barons’ hired hand to substitute?

Julia Olson argued ably for the plaintiffs, citing numerous precedents for her claim that the atmosphere is a public trust and that public trusts must be protected.  As in the on-going struggle over the Supreme Court’s pro-bribery Citizens United ruling, the state of Montana is featured in this debate, as the Supreme Court once ruled that Montana had a right to protect its rivers as a public trust, a ruling based on a long legal tradition, but later reversed.

Judge Wilkins asked Olson numerous detailed questions in a lengthy exchange that reviewed many precedents and hypothetical arguments.  Olson pointed to a case that had established a three-judge panel to direct the state of California to reduce its prison population.  The judges had not handled the details of the changes made to California’s penal system, but had enforced a level of reduction by a deadline, just as these plaintiffs want CO2 levels in the atmosphere reduced to 350 ppm by a set date.

Olson’s co-counsel Philip Gregory brought to Friday’s hearing something that was otherwise missing in hours of technical debate: honest passion.  Gregory made a moral as much as a legal case on behalf of the rights of the plaintiffs, a row of several teenagers seated in the front row of the courtroom.

Judge Wilkins argued to Gregory that either he was being asked to tell six government agencies that they were not doing their jobs as required by statute — in which case, the judge said, such matters could be handled one-at-a-time outside of this lawsuit, or he was being asked to instruct six agencies to act outside of their Congressional mandate.  Gregory’s response focused, rightly, on the magnitude and urgency of the crisis we face.

Trying to get courts to do Congress’s job may, in fact, not be ideal.  Trying to get state or foreign prosecutors to indict Bush for torture is not ideal.  Pinochet’s indictment in Spain was not ideal.  Federal desegregation of Southern states was not ideal.  Protecting voting rights state-by-state is not ideal.  But in an emergency, shouldn’t one try the tools that are available? And shouldn’t one drop counterproductive pretenses, such as the pretense that a functioning Congress still exists?

What if the mythical humanized frogs in the pot of gradually warming water — thousands and thousands of such frogs in a giant pot on a giant stove — had a frog government?  And what if the frog Congress had been bought off with piles of flies by a frog whose business it was to sell tiny, cold, bottled water to the frogs as they warmed?  If the frog courts decided to leave the decision to hop out of the pot to the frog Congress, they would make the correct decision that would best allow representative frog government in the future.  But would that do anything to guarantee that there would be any future for those frogs?

In case it isn’t blatantly obvious, the above and everything else written here is my opinion, not the plaintiffs’ legal arguments.  The hearing ran for about three hours, and was all very formal and polite.  Judge Wilkins generously thanked both sides for their “sincerity, diligence, and earnestness.”

“But I would be remiss,” he added, “if I did not say that it is a struggle for any judge to determine based on our Constitutional system how best to play the proper role in adjudicating a case like this one.  I don’t take the Constitution lightly. . . .”

“That said, it behooves all of us, regardless of the resolution of this case, to really think about what we can do to resolve this very serious problem.”

Of course, we aren’t all in the same position to do the same amount of good.  By ruling that this case can proceed, Wilkins would open up a public forum on intergenerational justice and a ground-breaking earth-protecting suit that the plaintiffs would be very likely to win.  Future generations would, quite likely, revere the name Robert Wilkins.  His heroism would not be quickly forgotten.