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If the people cannot trust their government to do the job for which it exists – to protect them and to promote their common welfare – all else is lost. —Barack Obama

Forcing Government To Protect The Future Sounds Like A Good Idea, But Is It?

We all remember the late Whitney Houston’s hit song, The Greatest Love Of All, don’t we? You can sing along in your head as I remind you of those opening words:

I believe the children are our are future
Teach them well and let them lead the way
Show them all the beauty they possess inside
Give them a sense of pride to make it easier
Let the children’s laughter remind us how we used to be

Saying that “children are our future” comes easy; it’s a popular line that politicians and others have used repeatedly, especially when talking about things such as education and the need to protect schools and playgrounds. Everyone always claims they support the need to protect and build a strong, sustainable future for “our children.” They’re actions, however, say otherwise.

Politicians are rarely held responsible for their actions, and especially not their inactions, especially when it comes to those matters that affect people not yet old enough to vote. That, however, could change. A class-action lawsuit was filed last August in Oregon by 21 young people, all under the age of 18, claiming that the government, “has known for decades that carbon dioxide (C02) pollution has been causing catastrophic climate change and has failed to take necessary action to curtail fossil fuel emissions. Moreover, plaintiffs allege that the government and its agencies have taken action or failed to take action that has resulted in increased carbon pollution through fossil fuel extraction, production, consumption, transportation, and exportation. ” The suit goes on to state that the plaintiffs accuse the government, through its actions and omissions, has violated their right to due process, violated the Fifth Amendment by denying rights afforded previous generations, and violated the public trust doctrine of the Ninth Amendment by failing to provide clean natural resources.

As with any lawsuit against the government, there was an immediate motion from the justice department arguing that the case was without merit. Representatives of various fossil fuel industries also filed motions in the case recommending that the whole thing be dropped. Sure, we believe that “children are our future,” we just don’t want to be forced to actually back up those statements with legislation.

The court, however, has disagreed and handed down a decision this past Friday, April 8, in which federal judge Thomas Coffin that not only ruled in favor of the children, but also stated:

“The debate about climate change and its impact has been before various political bodies for some time now. Plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society. It may be that eventually the alleged harms, assuming the correctness of plaintiffs’ analysis of the impacts of global climate change, will befall all of us. But the intractability of the debates before Congress and state legislatures and the alleged valuing of short term economic interest despite the cost to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government. This is especially true when such harms have an alleged disparate impact on a discrete class of society.”

The whole decision is some 24 pages long, but what Judge Coffin essentially says is that evidence of Government deliberately ignoring the dangers of burning fossil fuels is significant and that the children have a right to clean air and water guaranteed by the government. The government has an obligation to protect the future interests of those not yet old enough to voice their own opinion.

Obviously, this is just the first in what is likely to be many challenges to the lawsuit. It should also be noted here that the suit does have some adult involvement which might add a bit of shade to the altruistic appeal of the lawsuit. Legal actions are expensive and this one is being underwritten by Our Children’s Trust, a non-profit designed specifically to address climate change issues on behalf of children.

Setting aside the potential issue of exploiting children to gain a legal standing that might not otherwise be possible, let’s consider what happens if, through some very clever argument, the lawsuit is upheld all the way through the Supreme Court. Imagine Congress and the states being required to protect the future interest of children in relation to climate change. This is attacking directly a Congress that has had difficulty  even finding a base point of agreement on the topic. Will a lawsuit be sufficient to push them into action?

As much as I would like to think that would be the case, I can’t be too hopeful. Even should the children ultimately win, Congress is nothing if not full of lawyers experienced in finding loopholes and various ways to avoid being held responsible for anything. While the courts may compel Congress to take definitive action, there is no real punishment levied upon them if they don’t. Technically, Congress could be found in Contempt fo the Supreme Court, but it’s not like the Court would send all members of Congress to jail if they failed to comply. I have difficulty seeing a positive end result.

Looking at a larger scope, however, one has to consider the precedent of this lawsuit in challenging government to be responsible for the future impact of their actions or inactions. If this lawsuit is upheld, if governments have to protect the rights of children on the issue of burning fossil fuels and climate change, the similar arguments could be made concerning the economy, access to education, quality of education, access to good-paying jobs and housing. Potentially, this lawsuit could set a precedent that would allow those representing children to second-guess any action of government that might have a long-term negative effect and that list could be quite long.

Expanding out even further, if governments can be held liable to protect this interest of children, can parents or other groups be held liable for their actions as well? Do parents jeopardize their children’s future by failing to save for their college? Who’s responsible if a child’s health is sacrificed by smoking in the home? Can the NRA or any other group be held responsible for impeding legislation that might protect children from gun violence or lead paint or flammable clothing?

Last week’s Supreme Court decision in EVENWEL ET AL. v. ABBOTT, GOVERNOR OF TEXAS specifically states that congressional districts must be drawn using total population figures with no reduction or adjustment for whether portions of that population are eligible to vote. The precedent set here infers that the entire population of a district, including children, are to be represented by that member of Congress and it is the responsibility of each congressperson to protect the interests of all their constituents.

There’s a potential Pandora’s Box of litigation waiting should this lawsuit be upheld and it all comes down to one very basic premise: doing the right thing. When we know that something we are doing is harming someone else, regardless of how it might impact profit or the desires of someone else, we have an obligation to do the right thing and stop that activity.

If we really believe that children are our future, then it shouldn’t take a lawsuit to get Congress, or anyone else to do what’s right, not only on matters of climate change, but every other issue that affects the ability of our children to live reasonable, sustainable, and productive lives. We have an obligation to protect the future for our children, and if we don’t do that voluntarily, then they have the right to use the force of the courts. We have to do the right thing. Now.