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How Youth is taking over Climate Litigation in the United States

In the past decades, there has been an emerging consensus that climate change is mainly caused by human activities, creating more rapid changes in the natural environment and being directly linked to average global temperatures rising. Worldwide, the future of approximately 2 billion children is threatened by the negative effects of climate change, affecting their health and their right to a healthy environment as well. In recent years, the conscientiousness of various people and organisations has risen regarding the effects of governmental and legislative decisions on their health and future.

Lately, a tendency can be experienced that natural persons and NGOs turn to courts to sue governments or different governmental and state bodies for violation of their right to a healthy environment and their right to a future. As it was introduced on the blog in a previous article, in the case of Klimaseniorinnen vs Switzerland, the ECtHR has ruled that the national Government failed to act in the protection of the right to a healthy environment. The landmark ruling likely sets a tone, as was highlighted in the article, for future rulings. In current cases, the younger generation has raised their voices regarding their future and the effects of climate change on that future. The practice of ‘human rightism’  is now being actively applied by national courts in their rulings where they further interpret the definition of the right to a healthy environment and to a sustainable future.

Organisations, such as the Our Children’s Trust – as non-profit organisations – support young people and children pro bono before courts in their litigation against governments and governmental and state bodies to protect the younger generation’s constitutional and fundamental rights in different countries. In 2023, their milestone achievement was that for the very first time in U.S. history, a constitutional climate trial was set by a court and was not dismissed before trial.

“Youth-powered litigation” (as the abovementioned organization calls it) is becoming more and more popular. On 20 June 2024, the Trust won in the case concerning NAVAHINE V. HAWAIʻI DOT (Department of Transportation of Hawai’i), reaching another milestone in their climate litigation by becoming the first-ever climate trial where the governmental authorities accepted their damaging practices and made legally binding promises in a form of a settlement agreement. With this result, the trial became the very first in global history, where an agreement was reached and the community took the obligation to solve the issue together with cooperation of the plaintiffs as well, revolutionizing climate litigation. Is this the future of climate trials? What can we expect from these litigations for the future?

To better understand the big picture, this article is going to introduce the background of the trial, the content and context of the settlement agreement and the potential future of the current and similar cases in the United States and in Europe as well.

The lawsuit was filed against the Department of Transportation of Hawai’i by 14 young plaintiffs (between the ages of 9 and 18 years from different islands of the state) on the grounds that the state’s activities through the Department of Transportation emits considerable levels of greenhouse gas (GHG) emissions. These emissions harm the community living in the area, by that, violating their constitutional rights to a healthy live and a healthy future as well. The petitioners asked the court to declare the violation of this right and that the state’s department’s actions are against its own public trust doctrine  regarding conservation and protection of nature and natural resources.

The youth referred to studies as well, showing how extreme climate events affect their lives such as floods or extreme heat waves and how these are linked to increased GHG emissions by Hawai’i’s fossil fuel-based transportation policies and system. According to the allegations, the state failed to comply with its own 2045 Zero Emissions Target (established in 2021). The case was filed by the plaintiffs in early 2022 before the Hawai’i Circuit Court.

The case was based on the Constitution of the State of Hawaii, specifically Article IX Section 6 and Section 8. As context, it is noteworthy that the right to a healthy environment was unsuccessfully attempted to be included in the federal constitution as well, but to this date it is mentioned only in different contexts in several state constitutions.) The relevant Hawaiian constitutional sections prescribe the state’s obligation to preserve health of the public, so it defines the constitutional right negatively, by determining an obligation for the state in the interest of the public. Section 8 determines the preservation of a healthful environment (in force since 1978) as follows:

“The State shall have the power to promote and maintain a healthful environment, including the prevention of any excessive demands upon the environment and the State’s resources.”

In the instant case, the Department of Transportation filed a motion to dismiss the case, but the court denied it, and a trial date was set in August 2023. The Hawai’i court scheduled the trial in the mentioned case against the state’s department for June and July months of 2024. The governor and the above-mentioned department managed to reach an agreement, with that, reaching a ground-breaking settlement with the plaintiffs. The settlement agreement was announced on 20 June 2024. With that, this case became the first in world history to reach an agreement in a constitutional climate case where the parties are going to work in cooperation with each other to resolve the issue.

The settlement agreement contains actions promised by the defendants of the case to achieve the previously mentioned Zero Emissions Target 2024 and to comply with the constitutional obligations as well. The agreement includes the promise of establishing a GHG reduction plan (roadmap for full decarbonisation). Further, it requires the reform of the Department’s budgeting practices so that its budget will prioritise and focus on decarbonisation more effectively. With that, the state is obliged to dedicate a minimum of 40 $ million to build an electric vehicle charging station network for the public by 2030. By establishing inclusive decision-making processes, the state is obliged to create a feedback system where the plaintiffs will be part of the decision-making process by providing feedback of the mentioned GHG reduction plan and the state must also update them annually regarding their yearly progress. The state will also create new leadership positions that ensure accountability for achieving the goals prescribed by the agreement.

Regardless of the results of the agreement, the question arises what ensures that these promises will be kept, and these obligations will be fulfilled. The issue with the enforceability of similar agreements between the parties (not a judgment by the court) is that there is usually no authority to hold the parties accountable. This judgment is also ground-breaking because it establishes a continued jurisdiction to intervene, i.e. continued judicial supervision that ensures that the agreement is enforceable through 2045. In case of non-compliance, the binding agreement enables the courts to step in and ensure successful enforcement.

This outcome of this battle tackles the question how the right to a healthy environment will be enforced in states that grant it in their constitutions as well. Will this outcome encourage more and more plaintiffs (like in the case of Klimaseniorinnen) to sue governments and governmental bodies and authorities for violation of their right to a healthy environment. Likely, the number of climate trials is going to rise in the future as the effects of climate change strengthen and more case law will be available in the matter. The courts are undoubtedly interpreting the definition of the right to a healthy life and future, but it is yet to be determined where the barriers and limits of this new right lie.

Dorina BOSITS is a law student at the Széchenyi István University of Győr, Hungary, and an international finance and accounting graduate of the University of Applied Sciences of Wiener Neustadt, Austria. The main area of her research includes freedom of speech, digitalization, data protection, and financial law. She is a student at the Law School of MCC and a member of ELSA Győr.

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