A group of teenagers in Alaska is suing the state government for failing to safeguard their constitutional rights to a safe climate by failing to curb oil and gas production and reduce greenhouse gas emissions.

The teens are asking the state Superior Court in Anchorage to require the state to reduce its emissions by setting specific annual targets. The lawsuit, filed last week, named Gov. Bill Walker and several state agencies as defendants.

The case is the latest in a string of climate cases being pursued in state courts, a departure from the parallel strategy of suing in federal courts. The nonprofit behind the Alaska suit, Our Children’s Trust (OCT), is also behind the landmark federal case, Juliana v. United States that is currently progressing in federal court in Oregon.

OCT is also working on litigation in Oregon and Colorado, said Andrew Welle, staff attorney at the nonprofit, as well as roughly 10 other potential cases. The plaintiffs in the Oregon case asked the court to require the state to create a plan to reduce emissions. The lower court sided with the state, and the plaintiffs are appealing that decision.

In Colorado, the court has to decide whether the state violated its constitution and a law that requires it to protect the health and safety of the public and environment when it reviews permit applications for fracking. An appeal court sided with the plaintiffs, and the state is appealing the decision.

Five communities in California also opted for state court in their recent lawsuits against fossil fuel companies for climate-related damages. San Francisco and Oakland filed separate suits in California courts, as did San Mateo and San Marin counties as well as the city of Imperial Beach.

State courts may not be more sympathetic to the plaintiffs in climate cases, said Sean Hecht, co-executive director of the Emmett Institute on Climate Change and the Environment at UCLA Law School. But filing cases in different states increases the chances of finding courts willing to extend climate liability, he added.

It gives them a chance to test different legal theories and demonstrate facts in different parts of the country,” Hecht said, adding that they can also help sway public opinion in each state because they center on local impacts.

The Alaska case follows a similar, unsuccessful lawsuit filed by six children in 2011. It reached the state Supreme Court, which in 2014 ruled that the issue called for a solution from the legislative or executive branch of the government and not a judicial one.

The latest suit again asks the court to step in because the government hasn’t done its job, said Welle.

This case brings to the court’s attention that climate change has progressed in Alaska and everything has gotten worse and is projected to get worse,” Welle said. “Even though the Alaska government recognizes the emergency of climate change, it’s going the exact opposite direction by permitting more oil and gas development.”

The OCT lawsuits are part of a legal strategy to get climate change recognized as a constitutional issue. The plaintiffs argue that the potentially devastating consequences of global warming would impair people’s rights to life, liberty and property. In some states, such as Alaska, the constitution requires the government to protect natural resources for the common good, a mandate that holds the state responsible for addressing climate change, Welle said.

The Alaska plaintiffs say climate impacts are already affecting their lives, from flooding to a decline of food sources such as walrus and caribou. One of them, 19-year-old Esau Sinnok, said climate change is destroying his family’s way of life and the culture of Iñupiaq Eskimo from the island of Shishmaref.

The effects that climate change is having on Esau are a source of anxiety, stress and loss to him,” the lawsuit says. “Esau worries about the ways that climate change will continue to affect the plants and animals of his homeland in the future and he fears for the future of the cultural knowledge, history, and traditions, and existence of Shishmaref.”

The constitutional cases take a different strategy than those that have instead targeted fossil fuel companies, such as those in California, contending those businesses have acted irresponsibly by contributing to the growing emissions, and they have caused significant public harm as a result.

The constitutional cases are about stopping the damage and mitigating climate change. The tort cases are more about delivering justices by helping those who have been injured by climate change to adapt to it or get compensated for it,” said Jennifer Gleason, a staff attorney at the Environmental Law Alliance Worldwide, an Oregon-based legal advocacy group.

An important goal out of all these cases is to regulate and limit fossil fuel corporations,” she added.

That’s the case in Alaska, where Walker, who acknowledges the seriousness of climate change, has said the state needs to allow more oil drilling, including in the Arctic National Wildlife Refuge, to help pay for the damage caused by climate change. In Washington, D.C. this week, the Alaska Sen. Lisa Murkowski, who also acknowledges the human role in climate change, is holding a committee hearing on opening the refuge for oil production to help fund a Republican plan to cut taxes.

Grace Jang, a spokeswoman for Walker, declined to comment on the lawsuit, but said the governor “is concerned about the impacts of climate change on our state.” She pointed out that he signed an administrative order last week to create the Alaska Climate Change Strategy and Climate Action for Alaska Leadership Team, which will recommend policies for dealing with climate change.

Welle said the new group serves a merely advisory role and won’t ensure that the state deals with the issue urgently.

It seems like so much window dressing, ” he said. “In the interim, the governor is calling for an increase in oil and gas extraction.”

Ucilia Wang

First published by Climate Liability News, 10 November 2017