HELF Lecture: ‘Landmark US Federal Climate Lawsuit'

On Tuesday May 16th, 2017, the third Hague Environmental Law Facility (HELF) Lecture has been held in the Academy Building of the Peace Palace. The HELF Lecture, a joint effort of four organizations in The Hague (the Hague University of Applied Sciences, the Asser Institute, the Institute of Environmental Security and the Peace Palace Library), brought attention to a pending case between American Youth Groups and the Federal Government of the United States of America. The complaint of the American Youth Groups, age 9 to 20, asserts that through the US Governments’ affirmative actions in causing climate change, it has violated the youngest generation’s constitutional rights to life, liberty and property, as well as failed to protect essential public trust resources. Last November, a US Court issued a historic ruling denying the US Government and fossil fuel industry’s motions to dismiss the constitutional climate change lawsuit. This means the Youth Groups have legal standing in this case because their rights are at stake. The case is now headed to trial.

The introduction was held by Luca Pantaleo, also moderator of the lecture. Luca Pantaleo is a public international law specialist, EU law and external relations of the EU. Pantaleo talked about international law and highlighted the paradox in current international law regarding environmental issues. Environmental issues are global issues by nature. The more issues that have a global dimension, the more the international forum is the venue to deal with these issues. More bilateral and multilateral agreements, includes more disputes and more judicial or quasi-judicial mechanism by organizations and states at regional and international level. For instance the Water Court for Trade, WTO dispute mechanism, regional human rights courts, international criminal tribunals, the Tribunal of the Law of the Sea, ICSID, PCA etc. According to Pantaleo there has been an increasing number of disputes brought to these several courts. However international environmental law is an exception. The fast majority of international environmental agreements do not contemplate a dispute settlement mechanism with compulsory jurisdiction. Of course there are compliant mechanisms but that is not the same thing. There are exceptions however, like the  ICJ’s  Pottomill case in 2010. Although there is a lack of judicialization of international environmental law, on the domestic level there has been an explosion and increase of litigation. For example the ‘Urganda’ case in the Netherlands and the ‘Asghar Leghari’ case in Pakistan. Both cases were settled on constitutional grounds but it is clear that international environmental law indirectly plays a role in domestic litigation.

The first speaker and special guest was Kelly Matheson, President of Our Children's Trust, attorney, filmmaker and human rights advocate with a specialty in environmental human rights and the use of video in criminal justice investigations and proceedings. Kelly Matheson elaborated on the start and history of the landmark case Juliana v. U.S.  She told the backstory of Jayden Foytlin, Mary Wood, Julia Olson and Alec Loorz. On May 4th 2011, 21 young people brought legal action against the federal state because of the state´s collective failure to protect the atmosphere. According to Matheson not only in the USA, but also in other countries like the Netherlands and Pakistan, young people are undertaking legal action against the government because of the degradation of the air, water and atmosphere. All of the cases have three things in common. Firstly, all of these cases invoke constitutional rights; the right to live, liberty and property, the right to equal protection of the law and to be free of discrimination. Secondly, the cases invoke the public trust doctrine. The government must be responsible and protect intergenerational justice. And finally, the young people seek remedies on carbon science. Kelly Matheson is convinced the plaintiffs will succeed in the landmark case Juliana v. U.S. There is a viable legal pad to fix the climate system and the case is going to trial. By the end of her presentation Kelly Matheson issued a call for help. She asked the public to tell and spread the story of the Juliana case, to create more awareness for the environment and future of children, to support them and to spread the word via social media.

The second speaker was Brian Nail, professor of English at Florida State College at Jacksonville. His presentation, via SKYPE connection, was called the Children against the Sky. Brian Nail began the presentation with some quotes from the books 'The Man Against the Sky' by Edwin Arlington Robinson, 'Immunitas : The Protection and Negation of Life' by Roberto Esposito and 'The Horizontal Effect Revolution and the Question of Sovereignty' by Johan van der Walt.  In his speech Brian Nail talked about the activism against the common sense of negligence of the government, the political and philosophical challenges of the case Juliana v. U.S. and about the inevitable horizontal effects if the US judges will decide in favour of the 21 plaintiffs.  Brian Nail concluded “Regardless the outcome of the case, by giving the plaintiffs a forum for presenting evidence concerning the destructive effects of the fossil fuel consumption this case offers  a framework of progressive vision of democratic society,  humans are not to destined to repeat sacrificial practices of the past”.