Latest youth climate lawsuit targets the Alaska LNG Project, which is expected to generate billions of tons of climate pollutionEight young Alaskans have sued the state of Alaska and a state-created corporation in an attempt to prevent a massive new fossil gas project from proceeding. The lawsuit, Sagoonick v. State of Alaska II, targets the Alaska LNG Project and challenges a state law mandating the project be developed and advanced. This law, the case alleges, violates youth plaintiffs’ due process and public trust rights under the state constitution, as the project’s expected climate pollution would further deteriorate Alaska’s environment and significantly and disproportionately harm the state’s youngest citizens.
“Alaska’s youth are on the frontlines of the climate crisis, and their futures depend on a swift transition away from fossil fuels,” Andrew Welle, senior staff attorney for the nonprofit law firm Our Children’s Trust, said in a statement. “The Alaska LNG Project is the equivalent of pouring gasoline on a five-alarm fire at their homes.” The case was filed May 22 in the state’s Superior Court for the Third Judicial District in Anchorage. Defendants include the state of Alaska, the Alaska Gasline Development Corporation (AGDC), and the company’s president Frank Richards. AGDC, established under Alaskan law in 2010, is a public corporation of the state whose purpose is to facilitate development of fossil gas from Alaska’s North Slope. In 2014 the state legislature passed a law expanding AGDC’s mandate to include development of a liquefied ‘natural’ gas (LNG) project on behalf of the state. These statutory provisions that require the development of a major new LNG project and associated infrastructure are at odds with the scientifically-informed imperative that society must transition swiftly away from all fossil fuels in order to mitigate the worsening climate crisis, the new lawsuit asserts. “At a time when the scientific consensus requires that climate pollution must be rapidly reduced to avert further and irreversible climate harms to Alaska’s youth, [the statutory provisions] unconstitutionally direct AGDC to develop and advance the Alaska LNG Project,” the complaint contends, “which would unleash vast quantities of fossil gas from Alaska’s North Slope and substantially increase Alaska’s emissions of climate pollution.” The lawsuit seeks a court declaration that the statute mandating the Alaska LNG project is unconstitutional. Specifically, plaintiffs allege violations of their due process and public trust rights and the right to a climate system that sustains human life, liberty, and dignity. Under Alaska’s constitutional public trust provisions (in Article VIII), natural resources and the environment broadly are part of the public commons or trust, and the state is obligated as trustee to preserve them for present and future generations. The complaint argues that a life-sustaining climate system is a “critical component” of plaintiffs’ public trust rights, and is fundamental to other basic constitutional rights such as due process and life, liberty, and property. “[Defendants] are seeking to drastically expand Alaska’s annual emissions of fossil fuel climate pollution, but Alaska’s constitution doesn’t allow the state to do that, because it provides really strong protections for young people’s access to the natural resources that their lives depend on,” Welle said. Project could triple Alaska’s GHG emissions for decades Alaska is one of the largest oil and gas producing states in the US, ranking fifth in crude oil production and twelfth in fossil gas production. The Alaska LNG project would significantly increase gas production from the North Slope, which contains 35 trillion cubic feet of proven gas reserves and potentially an additional 200 trillion cubic feet of reserves, according to AGDC. Advancements in drilling technology could open up hundreds of trillions of cubic feet more fossil gas resources for extraction from the area. The Alaska LNG project consists of a gas treatment plant to treat raw extracted gas, a main gas pipeline to transport the gas more than 800 miles across the state, and an LNG plant and marine terminal to liquefy the gas for export, with much of it intended to be shipped to Asia. The project is expected to transport more than 3.5 billion cubic feet of fossil gas per day for combustion. It is fully permitted and ready for construction and operation; if allowed to go forward, it is expected to operate for at least 30 years, unleashing substantial levels of climate pollution – at least 2.3 billion metric tons. That would roughly triple Alaska’s greenhouse gas emissions for decades to come, the lawsuit argues. “On the frontlines of the frontlines” Alaska is already experiencing severe climate impacts. The state is warming at least twice as fast as the global average since the mid-20th century, and the Arctic region is heating at a rate of nearly four times the global average since 1979. From rapidly declining snowpack and glacier loss to melting permafrost (leading to mineral contamination of rivers, among other impacts) and profound transformations of sensitive ecosystems, the climate crisis driven primarily by fossil fuel combustion is causing a myriad of adverse impacts that threaten the health, wellbeing, cultural traditions and identities of the youth plaintiffs, the case argues. These young Alaskans, between the ages of 8 and 22, all have a deep connection to the land and natural environment that is increasingly imperiled by rising levels of climate pollution. “I joined this case because melting permafrost and erosion are harming my Yup’ik culture by sinking our land and hurting the subsistence we gather,” plaintiff Jamie T. said in a statement. “Many of the youth we represent in the case are from Alaska Native communities who depend directly on the natural resources surrounding their communities, the fish and the wildlife, to sustain their lives and their cultures. So they’re really on the frontlines of the frontlines of the climate crisis,” Welle said. Building on previous Alaska youth climate case In addition to declaratory relief, the youth plaintiffs are asking for a court order prohibiting the state from moving forward with the Alaska LNG project. A spokesperson for AGDC did not immediately respond to a request for comment. In August last year several environmental groups launched a court challenge to the US Department of Energy’s approvals of the project’s gas exports, arguing the federal government’s authorizations did not adequately and fully assess the climate and environmental impacts of this massive fossil fuel extraction and export project. “The Biden administration made a mockery of the climate emergency when it approved the Alaska LNG carbon bomb and this lawsuit aims to stop it from being built,” Jason Rylander, an attorney at the Center for Biological Diversity’s Climate Law Institute, said on the filing of that case by CBD and the Sierra Club with support from Earthjustice. The new youth-led lawsuit challenging the project is the latest youth constitutional climate case to be brought against governments in the US, and it follows a previous youth constitutional climate challenge to the Alaskan government that did not ultimately succeed. That case (Sagoonick v. State of Alaska I) featured several of the same plaintiffs and had a broader scope, contending that state policies and practices promoting fossil fuels were unconstitutional. The Alaska Supreme Court ended the case in 2022 with a 3-2 decision affirming the case should be dismissed. Welle said the new legal challenge builds upon the learned experience from that previous case. “I would characterize this case as following the guidance that was provided by the previous decision from the Alaska Supreme Court. The court specifically said that Alaska’s constitution does not leave youth without recourse and that they can challenge specific projects.” “In the midst of the climate emergency in Alaska, the state is pursuing a project that moves the state exactly in the opposite direction of what it needs to be doing to protect the lives and the health and the safety of these youth,” he added. “The situation is just getting worse for these young people in Alaska. With a case like this aimed at stopping a massive expansion of Alaska’s fossil fuel emissions, it’s is going to make a big difference for them.”
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Countries must step up climate action and take all necessary measures to reduce greenhouse gas emissions in line with the best available science in order to help protect and preserve the marine environment, an international tribunal has determined.
The highly anticipated advisory opinion from the International Tribunal for the Law of the Sea (ITLOS), delivered on May 21 in Hamburg, Germany, marks the first time that an international court has weighed in on the question of states’ responsibilities to combat climate change as a matter of ocean protection. It is the first of three advisory opinions to be issued from international tribunals that are expected to clarify states’ legal obligations to address climate change under international law, which observers say will help inform global climate negotiations under the UNFCCC regime and can provide persuasive authority in climate accountability court proceedings. Developed in response to a request from a coalition of nine small island states, the advisory opinion from ITLOS affirms that climate action is a legal duty; under the UN Convention on the Law of the Sea (UNCLOS) – a legally binding ocean treaty established in 1982 – countries have specific obligations to mitigate ocean pollution and adverse effects on the marine environment from anthropogenic greenhouse gas emissions. Such emissions, including from sources on land or through the atmosphere or at sea, constitute pollution of the marine environment, the tribunal found. This determination gives rise to the obligations to reduce marine pollution stemming from climate change, such as ocean acidification, and for states to work both individually and cooperatively to implement their obligations. Legal experts responded to the advisory opinion highlighting its significance and historic nature. Lea Main-Klingst, a lawyer with UK-based environmental law charity ClientEarth, said that the small island states spearheading the request for the opinion “have succeeded in a world first.” The tribunal’s decision, she said, “has made it clear that states worldwide must reduce their emissions to protect our ocean.” “The ITLOS advisory opinion marks a significant step forward in international environmental law and the protection of our oceans,” Louise Fournier, legal counsel for climate justice and liability at Greenpeace International, said in a statement. “It sets a clear legal precedent for addressing climate change through existing international frameworks and reinforces States’ responsibilities to act on climate change.” Advisory opinions are not themselves legally binding, but they are considered highly influential and can provide states and courts with important guidance, experts say. The opinion in this case clarifies obligations under the UNCLOS treaty – considered the “Constitution of the Ocean” – which is binding for the 169 countries that have ratified it (the United States has not ratified it, making it not formally party to the Convention). Countries that fail to meet their obligations to effectively address climate change under the Law of the Sea Convention, the tribunal suggests, could be held liable. These obligations, detailed in the tribunal’s unanimous opinion, include:
Additionally, the tribunal found that states’ mere participation in the UN climate negotiations and adoption of the Paris Climate Agreement may not suffice to satisfy these obligations, implying additional actions are needed. That includes regulating business activities that significantly contribute to GHG emissions, suggesting that the tribunal’s decision may have far-reaching implications for corporate climate polluters and their enablers. “Because business must follow where governments lead, companies and financial institutions are going to feel a knock-on effect from this development, too – no matter where they operate,” Main-Klingst said. High-ranking officials from the small island states leading this historic international legal initiative said the advisory opinion could be instrumental to efforts to hold big climate polluters accountable. “This is a historic moment for small island developing nations in their quest for climate justice; an important step in holding major polluters accountable, for the sake of all humankind,” Tuvalu High Commissioner to Fiji H.E. Eselealofa Apinelu said in a press release. “Small Island States are fighting for their survival. Some will become uninhabitable in the near future because of the failure to mitigate greenhouse gas emissions. We demand that the major polluters respect international law, and stop the catastrophic harm against us before it’s too late,” Gaston Browne, prime minister of Antigua and Barbuda, said. Tuvalu and Antigua and Barbuda were co-leads on this ITLOS advisory opinion initiative, submitted in December 2022 by the Commission of Small Island States on Climate Change and International Law (COSIS), a group formed in 2021 that includes Tuvalu, Antigua and Barbuda, Vanuatu, Palau, Saint Vincent and the Grenadines, Saint Kitts and St Nevis, Saint Lucia, Niue, and the Bahamas. These and other low-lying small island states are especially vulnerable to climate impacts like sea level rise, and their very existence in many ways is deeply intertwined with the sea. The advisory opinion comes at a time when atmospheric GHG concentrations have reached record levels, ocean temperatures have been off the charts, and another massive coral reef bleaching event is devastating marine ecosystems. Oceans are the world’s largest carbon sink, absorbing much of the thermal energy from heat-trapping greenhouse gas emissions, resulting in deleterious marine impacts. The ITLOS advisory opinion is the first of three highly-anticipated advisory opinions on climate change from international tribunals; advisory opinions from the Inter-American Court of Human Rights and the International Court of Justice (ICJ) are forthcoming. “The momentum from today is only set to grow,” said Main-Klingst, “as 2024 is a year of serious legal reckoning on climate change in international courts.” Lawyer who led the federal case against Big Tobacco tells Congress a Justice Department probe against the petroleum industry is appropriateAs climate change deception lawsuits filed by US states and municipalities against oil and gas majors continue to wind their way through the courts, pressure is building on the federal government to initiate legal action against the fossil fuel industry. This comes as a congressional investigation has unveiled new evidence of what lawmakers say is an ongoing campaign of corporate fraud to delay effective climate action.
“Our investigation uncovered compelling evidence of aggressive industry deceit which continued long after Big Oil gave up on its outright climate denialism,” Rep. Jamie Raskin, a Democrat from Maryland and Ranking Member of the House Committee on Oversight and Accountability, said during a Senate Budget Committee hearing on Wednesday, May 1. “Fossil fuel companies publicly claim to be partners — if not leaders — in fashioning climate solutions, but our investigation exposed that as a fraud. Big Oil is not addressing the climate crisis, but profiting from it, and using a lot of its mammoth resources on continuing campaigns to insulate its carbon-based business model.” Raskin and Senate Budget Committee Chairman Sheldon Whitehouse (D-RI) used the hearing to highlight findings based on subpoenaed industry documents obtained during a three-year investigation launched by House Democrats examining Big Oil’s sordid strategies to pollute the public discourse and impede the energy transition. From sponsoring academic research supporting its preferred purported climate solutions to engaging in extensive greenwashing through ad and PR blitzes, the industry continues to mislead the public on climate and is lying about its commitment to addressing it, internal documents indicate. “Just as it was the case with the tobacco industry, the petroleum companies’ internal documents tell the story,” Sharon Eubanks, an attorney who led the US Justice Department’s successful civil lawsuit against Big Tobacco, said during the hearing. She testified about the striking similarities between Big Tobacco and Big Oil in their deception campaigns and emphasized that oil companies should be held legally liable just as cigarette companies ultimately were. “At the core of the liability issues for the fossil fuel industry is that no company has acknowledged, just as the tobacco companies refused to acknowledge, that the product is the problem,” Eubanks said. She called for further federal investigation of fossil fuel companies, suggesting the Justice Department – the world’s largest law office – should open a probe and consider prosecuting Big Oil like it did with Big Tobacco. “The similarities between the conduct of the tobacco industry and the petroleum industry form a solid and appropriate basis for investigating the petroleum industry. Furthermore, we should not waste more time wringing our hands,” she said. “There is certainly an adequate legal foundation for litigation against this industry.” The federal tobacco litigation was a civil racketeering case, based on a statute called RICO (Racketeer Influenced and Corrupt Organizations Act) that has been used to prosecute mob bosses and organized crime. Several climate liability cases currently pending against Big Oil, including suits brought by Puerto Rican municipalities and the city of Hoboken, New Jersey, feature racketeering claims. Eubanks pointed to RICO law as well as conspiracy claims and consumer protection statutes when asked by Vermont Senator Bernie Sanders about legal grounds for holding oil companies accountable. “If you were Attorney General of the United States, would you proceed in that direction?” Sanders then asked. “I would yes, no question,” Eubanks responded. Last July amidst record-breaking extreme weather, during what has been called the “summer from hell,” Sanders, Whitehouse, and Rep. Alexandria Ocasio-Cortez discussed the pressing need to hold corporate carbon polluters accountable for their deceit and obstruction of climate policies. “I would love to see the Department of Justice bring exactly the kind of litigation that it won against the tobacco industry for lying about the dangers associated with its product,” Whitehouse said. Sanders agreed and said they should pay Attorney General Merrick Garland a visit to request that his Justice Department take action. Yet so far, the Department has been silent on the matter. When asked by Climate in the Courts if the Department of Justice will consider opening an investigation into the petroleum industry’s deception, as Eubanks recommended in her testimony, a DOJ spokesperson declined to comment. But youth climate activists are amplifying calls for the Biden administration to get off the sidelines. “Sunrise is demanding President Biden deliver for young people and the planet by declaring a Climate Emergency and suing Big Oil for their lies and harm they’ve caused our communities,” the Sunrise Movement wrote in a new fundraising email. Sunrise campaigners say Biden should stand up to the industry “the same way the federal government did to Big Tobacco.” Honolulu Responds to Oil Companies’ US Supreme Court Petition State lawsuits against the tobacco industry seeking to recover tobacco-related public health costs preceded the federal Big Tobacco litigation and resulted in the landmark $206 billion Master Settlement Agreement in 1998. Similarly, states and local governments are currently suing fossil fuel companies aiming to recover climate-related costs stemming from a decades-long campaign of deception and to hold the industry liable for alleged consumer fraud. A case brought by the Commonwealth of Massachusetts against ExxonMobil alleging violations of the state’s consumer protection statute is currently in pre-trial discovery and nearing trial. The other case that is furthest along procedurally is one brought by the city and county of Honolulu, Hawaii against nearly a dozen major oil and gas companies. That case is on the verge of entering discovery in earnest, having surmounted defendants’ motions to dismiss. Last fall the Hawaii Supreme Court upheld the decision against the companies denying their motions to dismiss, but the defendants are now mounting a US Supreme Court challenge to the ruling. In their petition to the US Supreme Court, oil company lawyers urged the Court to “put a stop” to climate deception cases that they claim are an attempt to regulate interstate greenhouse gas emissions. Attorneys for Honolulu pushed back against this interpretation of their case in their response to the petition filed on May 1. “As the Hawai‘i Supreme Court explained, petitioners mischaracterize the complaint as seeking to regulate pollution,” the response argues. Rather, Honolulu says, the case is squarely about the companies’ deceptive practices. As stated in the response’s introduction: “This case seeks to hold petitioners liable under Hawai‘i tort law for deliberately concealing and misrepresenting the climate change impacts of their fossil fuel products.” It is now up to the US Supreme Court to decide whether to take up the oil companies’ petition. A three-judge panel of a federal appeals court has shut down a rights-based climate lawsuit brought by 21 young people against the US federal government before the case could get to trial. With the court’s order this time, it appears the landmark case could be permanently ended.
The Ninth Circuit Court of Appeals on Wednesday ordered the Juliana v. United States youth civil rights lawsuit be dismissed once and for all without exceptions. In its ruling, the court granted a petition from the US Department of Justice, representing the government defendants, to supersede the trial court’s authority through an extraordinarily rare legal maneuver called a writ of mandamus. The government’s petition, filed in February, sought to reverse a decision from US District Judge Ann Aiken last year that greenlighted a revised and narrower version of the case for trial. Originally filed in 2015, the Juliana case challenged the US government’s systemic policies and actions that perpetuate fossil fuels and exacerbate the climate crisis. Arguing that the government knowingly endangers the nation’s children through its actions that contribute to climate change, the 21 youth plaintiffs asserted violations of their fundamental rights under the US Constitution and contended that a stable climate system is a precondition for guaranteeing those rights. Judge Aiken concurred when she wrote in a 2016 opinion denying the government’s first attempt to toss the case: “Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” The case survived multiple bids from the Department of Justice to thwart it and was scheduled to go to trial in October 2018, but the DOJ’s emergency petitions and a procedural intervention by the US Supreme Court derailed the trial schedule and led to the Ninth Circuit Court ultimately ordering (on a pre-trial appeal) that the case be dismissed; that 2-1 decision from a divided panel came out in January 2020. It could have been the end of the road for the Juliana plaintiffs, but they refused to give up and went back to Judge Aiken asking permission to amend their complaint. She granted their request in June 2023, reviving the case and setting it back on track for trial. Then the Department of Justice under the Biden administration resumed its relentless opposition and continued to try to block the case from reaching trial, almost a decade after it was first filed. The ruling from the Ninth Circuit panel on Wednesday seems to effectively quash the case for good, as it orders Judge Aiken to dismiss the suit “forthwith” and “without leave to amend”, meaning without allowing any revisions or exceptions. Youth plaintiffs and their attorneys responded to the ruling by expressing deep concern and disappointment. “Today’s decision by a panel of three Trump-appointed judges is wrong on the law and has a chilling effect,” said Julia Olson, founder and chief legal counsel at Our Children’s Trust, a nonprofit law firm representing young people in rights-based climate cases against governments. “A declaration of our constitutional rights by the courts is one of the few things that has moved our nation to greater justice and equality throughout history. The court’s opinion that declaring dangerous and discriminatory government systems unconstitutional doesn’t matter, is simply false. Adults continue to discriminate against young people in profoundly harmful ways, and this ruling greenlights these harms.” “I have been pleading for my government to hear our case since I was ten years old, and I am now nearly 19. A functioning democracy would not make a child beg for their rights to be protected in the courts, just to be ignored nearly a decade later. I am fed up with the continuous attempts to squash this case and silence our voices,” said plaintiff Avery McRae. According to the Our Children’s Trust webpage for the case, the youth plaintiffs are not giving up and are “now considering their options to move forward.” “This is a tragic and unjust ruling, but it is not over,” Olson said. “President Biden can still make this right by coming to the settlement table. And the full Ninth Circuit can correct this mistake. We will never give up fighting for the constitutional rights of our children and a livable planet for future generations.” |
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