Nov 27, 2015 by


CREDIT: Our Children’s Trust

Xiuhtezcatl Tonatiuh Martinez is not your average 15 year old. Speaking from his cell phone as he waits to board a plane for Los Angeles, Martinez fields questions with the aplomb of a seasoned activist, remaining sharply on message even as the conversation snakes and pivots around the gnarly issue of climate action.

“Nothing else compares to climate change in the sense to take urgency as a global community,” he said. “It’s a human rights issue that affects people all over the planet.”

Despite his young age, Martinez speaks like a veteran activist because, in a sense, he is one. His interest in climate activism began before enrolled in elementary school; he had his first public speaking engagement at age six. At age 13, he gave a TedX speech on environmental activism, was awarded the 2013 United States Community Service Award, and served on President Obama’s 2013 Youth Council. At 15, he was featured in a profile in Rolling Stone and spoke about climate change in front of the U.N. General Assembly.

And now, alongside 20 other youth activists, Martinez is suing the federal government in order to force action on climate change.

“Our generation has the most to lose, therefore our generation has the greatest opportunity to change the world,” Martinez said. “Just because we can’t vote doesn’t mean that we can have an impact on the way that our world is going to be left for future generations.”

The federal lawsuit, which was officially submitted this August, mirrors lawsuits and petitions that have been filed in every state in the country. All the lawsuits are spearheaded by an Oregon-based organization known as Our Children’s Trust, a nonprofit that seeks to protect the earth’s natural resources for current and future generations. In a single week in 2011, Our Children’s Trust filed petitions and lawsuits in every single state, setting up a slew of legal proceedings that they hope will turn the tide on climate action in the country.

Our Children’s Trust bases their work on a legal theory developed by University of Oregon law professor Mary Wood, known as atmospheric trust litigation. Atmospheric trust litigation finds its roots in the public trust doctrine, which Woods calls “the oldest doctrine of environmental law” — the idea that governments must hold certain things in trust for public use, such as rivers, seas, and the seashore. It’s a concept as old as the Romans, but in this country, it was used to first great effect by the Supreme Court in 1892 to declare that navigable waters and submerged lands constituted part of the public trust — the government, in other words, had to preserve them for its citizens.

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CREDIT: Our Children’s Trust

“What this litigation does is it fast forwards that constitutional principle to the modern urgency of climate crisis,” Woods, who is not involved in the current litigation, told ThinkProgress. “It’s a very simple extension of logic. If navigable waters were crucial to the public back then, certainly the air, atmosphere, and climate systems warrant protection as public trust systems as well.”

Though Woods is not personally involved in any of the litigation that Our Children’s Trust is currently working on, she is close to the cases in another way: One of her students this year, 18-year-old Tia Hatton, is a plaintiff in the case. Hatton first became involved in climate activism last year, when she worked with small group of students to pass an ordinance trying to cut carbon emissions on a local scale in her hometown of Bend, Oregon. In the midst of that process, she was contacted by Our Children’s Trust, who asked Hatton if she would be interested in becoming part of a lawsuit against the federal government.

Unlike Martinez, Hatton wasn’t immediately sold on the idea.

“Before the case, I was one of those people that thought there is so much doubt about climate change, I wanted to see the science,” Hatton told ThinkProgress. “Once I saw it, and was aware of what the government knew and the extreme danger they are putting us in, I was definitely on board from there on out.”

The crux of Our Children’s Trust’s strategy rests on the idea that the traditional way that the climate has been dealt with — under statutory laws like the Clean Air Act or the Clean Water Act — have been insufficient in protecting current and future generations from the threat of climate change. And while the Obama administration has worked to enact a slew of regulations aimed at limiting the country’s carbon emissions — from vehicle standards to the Clean Power Plan — many environmentalists argue that the steps aren’t enough to stave off dangerous climate change.

“I think that the government should be responsible for protecting us against climate change because it says in the Constitution we have a right to life, liberty, and the pursuit of happiness,” Victoria Barrett, a 16-year old plaintiff from Westchester, New York, told ThinkProgress. “A big part of fixing climate change is big policy change, not just little individual changes.”

So far, the cases at the state level have rendered largely disappointing results, with most judges claiming that the issue is one for legislators, not judicial officials. But last week, plaintiff’s in Washington claimed a victory when King County Superior Court Judge Hollis Hill wrote in her denial of the plaintiff’s petition that “navigable waters and the atmosphere are intertwined,” asserting that the atmosphere is part of the Washington state public trust. And while the judge’s denial of the petition might seem like a loss — the denial was largely based on the fact that the Washington Department of Ecology is already engaged in writing rules to limit carbon emissions in the state — the language of the decision gives the plaintiff’s hope that judges might be waking up to the threat of climate change.

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CREDIT: Our Children’s Trust

“…as the Petitioners assert and this court finds, their very survival depends upon the will of their elders to act now, decisively and unequivocally, to stem the tide of global warming by accelerating the reduction of GHG’s before doing so becomes first too costly and then too late,” Hollis’ decision read.

As a state decision, Hollis’ findings have no immediate impact on the other lawsuits pending in other states. But the logic, Woods argues, is immediately transferable.

“[Judge Hollis] is saying is there is a right to a healthful and pleasant atmosphere, embodied in the reserved inalienable rights of citizens,” Woods explained. “This makes the case monumental in impact because it speaks to a constitutional provision found in general form in every single state in the country.”

Even with the Washington state decision, the the plaintiffs at the federal and state level are up against tough challenges. In mid-November, a group of fossil fuel companies — including representatives of ExxonMobil, BP, Shell, and Koch Industries — filed a motion to intervene in the federal suit, arguing that it would force an “unprecedented restructuring of the economy” and “massive societal changes.”

But those changes are exactly what the plaintiffs are hoping to achieve — even if that means facing an uphill battle in courts and losses at the state or federal level.

“A legal movement is not measured by one or two victories or defeat — it’s the overall impact it has on moving society towards its goal,” Woods said, drawing comparisons to the marriage equality movement which, after years of prolonged legal battles at the state and federal level, finally won a decisive victory at the Supreme Court this summer.

For the plaintiffs — many of whom are too young to vote — the lawsuits are a way of ensuring that their voices are heard.

“This thing that we’re doing right now is turning heads,” Hatton said.

Martinez agrees, citing the recent intervention by fossil fuel companies as proof that the movement is gaining traction.

“All of the sudden we’ve got some of the biggest fossil fuel extraction industries in the country teaming up against us,” he said. “What better demonstration that we are making an impact? More than anything, it’s about getting attention and making a difference.”


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