“This is no ordinary lawsuit.”
This pithy line opens the “Background” portion of Judge Aiken’s decision to deny the dismissal of Juliana v. United States last year in Oregon.
With the makings of a David & Goliath trial, the suit pits 21 young plaintiffs, ages 9-20, against the U.S. government – the former represented by counsel from Our Children’s Trust, a youth-oriented sustainability organization, and the latter aided by several intervenors, including the American Petroleum Institute and the American Fuel & Petrochemical Manufacturers.
The charges brought against the U.S. government in this case are simple. The plaintiffs, led by activist Kelsey Juliana, argue that, despite decades of verifiable proof of harm, the United States knowingly allowed (and incentivized) the fossil fuel industry to taint natural resources and contribute to climate change – disturbing a public trust (in the form of the land and ocean) and causing an imminent and preventable danger for U.S. citizens.
“No ordinary lawsuit” is right. And, naturally, the case’s sheer grandiosity has attracted massive publicity, with much of it focusing on the 16-year-old plaintiff Xiuhtezcatl Martinez. However, the hip-hop musician and three-time U.N. speaker isn’t shy around the cameras. For him, what could have been written off as just another symbolic protest has morphed into a chance for legitimate environmental action. “I feel like this lawsuit is a really great indicator of what we can do,” he tells me.” “This is 21 plaintiffs, every one of them with a different story, fighting against the biggest issue of our time. It’s the issue that connects every person, every community, every movement, every circle.”
To be clear, Martinez’s pulpit is one he was born into. His mother, Tamara Rose, founded the environmentalist group Earth Guardians in 1992 and has devoted her life to activism ever since. Nevertheless, it would be ill-advised to tab her son as a mere prop in her mission. In fact, it has been largely Martinez’s individual charisma – his intelligence, wit, and humor – that has fostered the recent growth of the Earth Guardians organization.
The half-Aztec American, whose first name is continuously butchered by interviewers (shoe-tez-caht), has been in the public eye since he spoke at a global warming awareness event when he was six. Even with this early start, Martinez’s resume under the public eye is stunning for a 16-year-old. Rolling Stone. Vogue. Vice. The list goes on ad nauseum. In the past three years alone, Martinez has been the subject of a documentary, has spoken before the U.N., and has performed his music at a TED Talks event. When I ask him how he’s able to balance his work with his social life (usually the bigger priority for a typical 16-year-old), he laughs and says jokingly, “I don’t have any friends.”
While interviewing Martinez in June of last year, Bill Maher couldn’t hold back his characteristic snark. “But let’s not pretend you’re typical of your generation,” he quipped, referring to Generation Z’s effigies of iPhone and selfie addiction clichés. But when confronted by this pessimism Martinez always maintains his belief in the power of youth-based movement. “Young people are creative, intelligent,” he says. “We’re entrepreneurs. We’re thinkers. We live in an era of technology, of resources as far as information goes. And when young people are allowed to engage with those things in a positive way, it creates an immense amount of potential for youth to be at the frontlines of some of the most important issues of our time.”
The time, however, doesn’t appear as friendly as it once was toward climate change activism. As Martinez says, even though President Obama helped to expand the fracking and oil drilling industry in the U.S., his rhetoric and initiatives often leaned green – with an emphasis on renewable energy being one of the trademarks of his controversial 2009 stimulus package. Donald Trump, by contrast, is a known climate change denier, who has declared the science of global warming to be part of an elaborate hoax. And several of his appointments (e.g., former ExxonMobil CEO Rex Tillerson as Secretary of State and notorious EPA-antagonist Scott Pruitt as EPA administrator) have done little to persuade activists that the president is on their side.
On this topic too, Martinez remains positive. “He’s just another president,” he tells me. “I just feel like, regardless of Republican or Democrat, regardless of their views, real change is never going to come from a politician.” Moreover, Martinez is convinced that Trump’s election is just the jolt his movement needed to bring its members out of complacency: “Trump’s appointment as the president has replaced the puppets with the puppeteers…He threatens a lot, but it’s going to push people who weren’t always engaged to be a part of something – now more than ever. Now we really don’t have our politicians on our side.”
Martinez’s optimism for the cause may be justified, as there have been growing signs of an international recognition of the dangers posed by climate change – culminating in last year’s signing of the Paris Agreement. A further, and more relevant, example, of this awareness though occurred in 2015, when a Dutch court ruled that the Netherlands would have to cut its carbon emissions down by 25% over the course of five years – with the aim of reducing any harmful environmental impact. “Any reduction of emissions contributes to the prevention of dangerous climate change and as a developed country the Netherlands should take the lead in this,” the judges’ ruling announced.
Both this case and its domestic cousin Juliana v. United States, in which Martinez is currently testifying, raise an interesting question about the scope of government in regards to public health and corporate entanglement. The due process rights guaranteed by the American constitution state that no one “shall be deprived of life, liberty, or property, without due process of law.” Being “deprived of life,” as Martinez has said (and as an Oregon district court has affirmed), can include the damages brought on by human-made climate change. And, to this effect, the U.S. government’s longtime involvement with the fossil fuel industry may render it vulnerable to the charges of Juliana.
A victory for Martinez and the other plaintiffs wouldn’t be that outlandish. The U.S. government has already recognized a need to regulate pollutants to protect its citizens – most notably with the creation of the EPA in 1970. And, as Judge Aiken noted in her November decision, there is proof to back up the claims of damage.
A victory would be unprecedented though. It has the potential to shake foundations, foundations upon which thousands of jobs and billions of dollars rest. In fact, when Judge Aiken wrote the conclusion of her decision, she alluded to the fact that one of the government’s biggest protests against the case going forward was that it could change everything:
This lawsuit may be groundbreaking, but that fact does not alter the legal standards governing the motions to dismiss. Indeed, the seriousness of plaintiffs’ allegations underscores how vitally important it is for this Court to apply those standards carefully and correctly.
Federal courts too often have been cautious and overly deferential in the arena of environmental law, and the world has suffered for it.
It’s worth noting that a “groundbreaking” victory for Martinez’s mission does carry some severe consequences though. The fossil fuel industry is a nation unto itself, supporting countless families. Last year’s drop in gas prices, which resulted in the loss of thousands of jobs, is a stark reminder of the oft-maligned business’s human umbilical.
However, Martinez and others claim that the health of the economy will mean nothing if the health of the planet is irrevocably damaged before the next generation inherits it. This stake in the future, Martinez maintains, is the reason why youth-led sustainability action and the present lawsuit are so important. “We’re not going to wait until we’re adults to do something about it,” he says. “I think the state of the planet, as far as climate change goes, is so out of hand that we really only have the next 5-10 years.”
With its promise of monumental change, the result of this case could prove crucial for Martinez’s efforts. If nothing else, it shows that America’s youth may not be as shiftless or as careless as some of our more cynical culture critics suppose. The children are our future is a tough 21st century proposition – shopworn by repetition and parody (“Will somebody please think of the children!”). But what is all that adult cynicism of ours built upon if not refrains like everyone is unique, you can be whatever you want, and the children are our future ringing hollow when they shouldn’t?
by P.M. French