Reading about a climate-change lawsuit is potentially a double threat; it’s an often gloomy topic weighed down by an eye-glazing overlay of legal jargon.

But stay with me.

This particular story features idealistic youth, the limits of democracy, and an ending with a twist. All of it captured in a courtroom showdown that originated in the Pacific Northwest.

People have been bringing lawsuits related to climate change for decades, using a number of laws to challenge government proposals that either added to our climate burden or failed to adequately consider the consequences of a warming environment. More recently, a new variant has emerged: lawsuits using older, common law torts to directly challenge the actions of those, like coal-fired power plant operators, responsible for the greenhouse gas pollution. Common law torts include the kinds of claims with which you are likely familiar: negligence, trespass, and nuisance.

As the Industrial Revolution took hold, nuisance lawsuits involving air and water pollution increasingly targeted the factories driving the economic surge. A lawsuit-by-lawsuit approach to combat environmental degradation, however, has obvious limits. It is a patchwork solution instigated only after the initial damage has already occurred; it can be subject to a judicial balancing of costs and benefits; and it relies on the time and resources of individual plaintiffs.  Congress enacted our modern statutory environmental laws in response to the need for nationwide standards to address widespread pollution that can reach across political boundaries to foul the rivers and streams, poison the soils, and darken the skies.

So why revisit an admittedly imperfect strategy to deal with climate change? Simply put, it’s desperation. To meet the goal of a temperature increase of no more than 2 degrees Celsius, a goal that still carries real risks of widespread harm, not only must we make massive cuts in greenhouse gas emissions worldwide, but we must undertake large-scale carbon removal from the atmosphere. In other words, even if the current president’s administration were not populated with a raft of climate deniers and fossil fuel cheerleaders, we need to do more, faster. Starting yesterday.

This lawsuit is proceeding on a potentially groundbreaking legal theory, alleging that the federal government’s long-standing policies have violated the plaintiffs’ constitutional rights, including the right to a stable climate and the right to a properly managed “public trust.”

Which brings us to Kelsey Cascadia Rose Juliana, age 21, the lead plaintiff in a go-for-broke, swing-for-the-fences lawsuit filed in Oregon federal district court against most of the federal government. This lawsuit is proceeding on a potentially groundbreaking legal theory, alleging that the federal government’s long-standing policies have violated the plaintiffs’ constitutional rights, including the right to a stable climate and the right to a properly managed “public trust.”

The concept of a public trust arguably dates back as far as the Roman Empire. Under the theory of a public trust, the government holds certain assets in trust for the benefit of the public and must protectively manage those assets. Historically, the concept of a public trust has most often been applied to aquatic resources such as tidelands and other waterways. For example, the Supreme Court found that the State of Illinois was not permitted to sell off submerged lands to a private railroad. In recent years, a few law professors (especially one in particular) have advocated extending the concept to our shared atmosphere, reacting to the fact that the government has done little to prevent—and in some cases has encouraged—dumping greenhouse gas pollution into the air to the detriment of us all.

The district court in Oregon rejected early efforts by the federal defendants to dismiss the lawsuit and ordered the parties to prepare for trial. However, the Ninth Circuit Court of Appeals, responding to a plea from the government, will soon decide whether the case should proceed any further. That argument, before a panel of three judges, will take place on Dec. 11 at 10 a.m. PST.  You can listen to a livestream, or find the recording later. But to give you some sense of what is in dispute, here’s a short—and by no means comprehensive—primer.

Standing (What’s it to you?)

The requirement for “standing” is derived from the common-sense notion that there must be an actual controversy between the parties in the case. The plaintiff must show a particularized injury as well as a link between that injury and the defendant’s wrongdoing. Further, the court’s decision must be likely to redress that injury. Even absent climate change, these elements can present pitfalls to litigants, but applied to a truly global phenomenon with innumerable sources each year pumping out billions of tons of carbon dioxide, establishing standing is conceptually much more difficult. Can any handful of emitters be said to “cause” climate change? Were the court to reduce those emissions, would it even begin to address the problem?

The Juliana plaintiffs’ attempt to streamline the inquiry into standing is simple and audacious. They ask the court to aggregate all of the US government’s actions (and failures to act) over the last 50 years related to fossil fuel development and consumption, claiming that this irrefutably substantial percentage of global emissions has caused the plaintiffs harm. In support, they cite the fact that historically, the US is responsible for emitting over a quarter of all the carbon dioxide that has so far accumulated in the atmosphere.

Similarly, the plaintiffs’ request that the court order the government to implement “an enforceable national remedial plan” to phase out fossil fuel emissions and “draw down excess atmospheric CO2” ensures that success would have at least some discernable impact.

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  • Expect the government to open with the argument that this theory of standing, which it deems the “kitchen-sink approach,” is unprecedented and unjustified.

    Plaintiffs’ claims (What gives you the right?)

    Plaintiffs’ claims are all based on the US Constitution. Among other arguments, they assert that the disruption from climate change implicates the constitutional protection of “life, liberty, and property” included in the Fifth Amendment. Courts have long found that the Constitution includes other fundamental rights that are not expressly listed, such as the right to privacy, and the district court in Oregon reasoned that the right to “a climate system capable of sustaining human life” is not altogether different from the Supreme Court’s recent recognition that the Constitution protects the right to same-sex marriage. In the words of the district court, just as marriage is the “foundation of the family,” a stable, functioning climate is “quite literally” the foundation of society, without which there can be neither civilization nor progress.

    In what may be its only attempt at levity, the federal government’s brief quotes a Supreme Court decision finding that without existing historical, textural, or precedential support, a court should avoid creating a new right “out of thin air.” Plaintiffs sensibly respond, in part, that a functional climate is a prerequisite to all protected rights. Life, liberty, and property mean little when suffering the brunt of a planet-wide catastrophe.

    In their arguments claiming a violation of the public trust, the plaintiffs have avoided the term “atmospheric trust.” They instead neatly tie the claim to the harm suffered by the planet’s entire “climate system,” including aquatic degradation resulting from ocean warming and acidification. By doing so, they locate this climatic version of a public trust violation squarely within its traditional water-logged boundaries. Plaintiffs’ public trust claim also arises from rights protected by the Constitution. But rather than argue about the scope of constitutional protections, in its Ninth Circuit briefing the government maintains that the public trust doctrine is an obligation applicable only to the states.

    Political question (Who do you think you are?)

    A final theme of the government’s opposition is aimed as much at the district court as the plaintiffs. In the government’s view, to allow this case to move forward would be “judicial overreach,” “usurp[ing] the authority” of the political branches and violating the “separation of powers” that characterizes our system of government. Courts in the past have found some merit to this idea, dismissing climate change lawsuits for raising a “political question” best left to elected officials. The federal defendants here don’t invoke the term “political question” with the Ninth Circuit (they argued the point in the district court), but some of its strongest rhetorical firepower raises the specter of a rogue judicial branch trampling the will of the people.

    You can imagine the skepticism of a judge with a conservative outlook confronting this lawsuit:

    The President has had the power [to act] . . . Those efforts failed, so [the plaintiffs] come to the courts and ask this Court to say it was or has become unconstitutional. They left aside the immediate aspects, and so wait to see what this Court does. . . . [W]e should not move to change the law.  If there is to be a change, Congress should do it.

    However, this excerpt comes not from the current dispute but rather a 1953 discussion among the Supreme Court justices deliberating the outcome in Brown v. Board of Education of Topeka. (That’s the twist!) I am not trying to draw a moral equivalency between the two cases, although it must be noted that there are strong environmental-justice issues associated with climate change. Low-income communities are affected not just by the conventional pollutants resulting from fossil fuel consumption but also suffer disproportionately from the effects of climate change itself.

    I include the quote here to raise another point: what can appear improbable and revolutionary in the present moment may look obvious and overdue in retrospect.

    Today, climate change inaction from the federal government makes no legal, logical, or moral sense. The odds, unfortunately, remain long for the Juliana plaintiffs. Although I hope the case will survive this stage of legal review, the Ninth Circuit undoubtedly intervened based on some degree of skepticism that the lawsuit should advance any further. You can be assured that the climate fight will proceed on many fronts no matter the result in Juliana, but listen in on December 11 to hear the blow-by-blow for this particular round.

    Michael Mayer practiced environmental law in the Northwest for close to a decade and now teaches climate change law at Seattle University School of Law.