April 03, 2019

Climate Change Litigation as a Model for Addressing Waste Pollution: Juliana v. United States

John K. Powell

Kelsey Cascadia Rose Juliana, et al. v. United States, et al.(hereinafter Juliana) is not your ordinary lawsuit. In August 2015, a group of 21 young environmental activists, nonprofit organization Earth Guardians, and nonprofit organization Future Generations through their Guardian Dr. James Hansen, filed a lawsuit in the U.S. District Court for the District of Oregon against the United States, then President Barack Obama, and numerous federal agencies including but not limited to the U.S. Departments of Energy, Transportation, and Interior, as well as the U.S. Environmental Protection Agency (EPA) whose core mission is to protect human health and the environment. The first and one of the oldest named plaintiffs, Kelsey Cascadia Rose Juliana, a 19-year-old resident of Oregon, is also not your typical teenager, once walking 1,600 miles from Nebraska to Washington, D.C., in the “Great March for Climate Action.” The youngest plaintiff, just eight years old at the time of filing, is a resident of Florida concerned about abnormal temperatures, rainfall, and impacts to the area’s marine ecosystem. All of these youth plaintiffs will range in age from 43 to 55 by the year 2050, often cited as a potentially ominous benchmark year for climate change impacts.

The Juliana lawsuit alleges defendants have known for more than 50 years that carbon dioxide (CO2) emitted as a result of combusting coal, oil, and natural gas was destabilizing Earth’s climate system in a way that would significantly endanger plaintiffs, and with damages that could endure for millennia. Despite this knowledge, the lawsuit alleges defendants permitted, encouraged, and enabled the continued exploitation, production, and combustion of fossil fuels through actions such as permitting, subsidizing, and authorizing the use of federal lands, thereby allowing CO2 and other greenhouse gas (GHG) concentrations in the atmosphere to increase to levels unprecedented in human history. While admittedly many diverse sources and entities contribute to the global problem, Juliana alleges defendants bear a higher degree of responsibility than any other individual, entity, or country for exposing these particular plaintiffs to the associated dangers. In violation of their substantive due process rights to life, liberty, and property, and in violation of defendants’ obligation to hold natural resources in trust for the people and for future generations, plaintiffs are seeking a declaration that their constitutional and public trust rights have been violated, enjoining defendants from further violating those rights, and directing the development of a plan to reduce CO2 emissions.

Initially, some viewed Juliana as a “kids” lawsuit, perhaps without merit or any real likelihood of success. However, once major industries began to engage, and the lawsuit found itself overcoming multiple legal challenges and motions to dismiss and delay, including involvement by the U.S. Supreme Court, it quickly gained legitimacy. Now, almost four years later, with oral arguments anticipated in June 2019, it is being taken seriously, with the possibility of landing in front of the U.S. Supreme Court once again. From adorable to formidable, the ramifications of Juliana could be far reaching, with the same approach potentially being applied to other areas of natural resource protection and pollution prevention, such as the global problem of waste management.

One such example is the problem of waste plastic. Not unlike the GHG effect, the problem of waste plastic in the oceans is well documented, with scientific reporting dating back to the mid-twentieth century. The U.S. government has been aware of and gone on record recognizing the hazards of plastics pollution in the marine environment for decades, citing to both a physical threat such as entanglement, smothering, gastrointestinal blockage and reef destruction, as well as a chemical threat including bioaccumulation of the plastic’s chemical makeup in wildlife and the overall ecosystem, creating a potentially toxic pathway to humans through fish consumption. The EPA notes that plastic trash and particles, which unlike organic waste, maintain their bioavailability for years and can be found in most every marine and terrestrial habitat, including the deep sea, Great Lakes, coral reefs, beaches, rivers, and estuaries. Some of the same reasons plastic products are so effective (e.g., durable, cheap, and light) are the same reasons they persist in the environment for so long, are present in such large amounts, and are found in nearly every corner of the globe.

With growth in the global supply of fish for human consumption outpacing population growth over the past five decades, and the challenge to feed a predicted nine plus billion people by 2050, marine protection is essential. While the oceans and its fisheries may still produce sufficient quantities to sustain current populations, if business as usual continues, it may not be possible for future generations.

Although the causal connection between fossil fuel production, climate anomalies, and natural resource degradation is complex and complicated, and one easily challenged by opponents, it is much less a legal obstacle for waste plastics. The link between plastic pollution and marine impacts is clear and well known. Marine life stuck in plastic bags and bands, sea turtles with straws lodged in nostrils, and fish with microplastic and associated chemicals accumulating in their digestive system and tissue, which humans may later unknowingly consume, make the cause-and-effect issue nearly undisputable and arguably unassailable.

Using the same legal logic as Juliana, it could be alleged that the same category of defendants (elected officials and federal agencies), despite knowing about the adverse impacts caused by plastics pollution, the accumulation in the oceans, and the ever-increasing threat to marine life and global food supplies, failed to adopt effective policies to transition away from the production and usage of single-use or non-degradable plastics including enacting stricter regulations on disposal practices. Furthermore, it could be alleged that the health and viability of our oceans is critical to survival and therefore to the constitutionally protected right of life, liberty, and property and that the government must hold and safeguard these commons in the public trust, for the welfare of citizens both current and future. As in Juliana, potential plaintiffs in such a case (the next generation) may be considered a protected class since they currently possess no voting rights, little or no political power or influence, and because they will disproportionately confront the potentially irreversible and catastrophic destabilization of the world’s marine ecosystem to an extent that today’s adults and elected officials simply will not.

The Juliana case is fascinating, in and of itself, and its potential application to other areas such as waste management only magnifies its importance. Like fossil fuel fired electricity and transportation, plastic products are a common and integral part of life as we know it today. From grocery bags to life-saving medical devices, plastics provide meaningful, economical, and reliable products that each of us use in our everyday lives.

The problem of plastics and waste disposal is not a partisan issue. While it may be simple to recognize, because of its ubiquity and value to society, it is nevertheless a difficult one to fix. The concept of a fundamental right to a clean and healthy environment is hardly new, appearing directly or alluded to in numerous court opinions, constitutions, and other legal documents. However, it appears to be finding more support as populations continue to increase and our global commons reach carrying capacity. Even should it fail in court, Juliana has further ignited the deep passion of the country’s youth for the environment, with 30,000 more signing on to a recent amicus brief urging that the case go to trial. It is also inspiring the next generation of elected officials and policy makers to take notice and get involved now.

    John K. Powell

    Published: April 3, 2019

    John K. Powell is an attorney and professional engineer with more than 20 years of experience in environmental regulatory compliance and sustainability matters for public, private, and industrial clients. He is the director of the City of Tallahassee’s Environmental Services and Facilities Department and an adjunct instructor at the FAMU-FSU College of Engineering. He may be reached at john.powell@talgov.com