The Next Kids Climate Case: Genesis B. v. EPA

Another climate change lawsuit filed on behalf of children, this time against the Environmental Protection Agency.

This week, Our Children's Trust, filed another in its series of "kids climate cases"--cases raising climate change claims brought on behalf of children. OCT is the group behind the Juliana litigation, in addition to several cases brought against states in state courts.

The new case, Genesis B. v. Environmental Protection Agency, argues that the EPA has violated the constitutional rights of the plaintiffs by failing to act more aggressively to reduce greenhouse gas emissions. Specifically, the Genesis plaintiffs argue that the EPA, and the federal government more broadly, have violated the plaintiffs' rights to Equal Protection and Due Process under the Fifth Amendment. Both sets of claims ask the courts to go well beyond existing law. For the former, the plaintiffs ask the courts recognize children as a protected class for the purposes of Equal Protection. For the latter, they claim that the EPA's failure to regulate more aggressively violates the plaintiffs right to life and their "fundamental right to a life sustaining climate system." To say these are audacious claims is an understatement.

The federal government's motion to dismiss should write itself. For starters, the plaintiffs face serious standing hurdles, particularly with regard to redressability. Standing is what ultimately grounded the Juliana litigation (though the judge has sought to revive it), and as this case was also filed within the U.S. Court of Appeals for the Ninth Circuit (specifically, the Central District of California), standing concerns will cast a long shadow over this case too.

But even should the plaintiffs get past standing, substantial hurdles will remain, not the least of which is that it is based upon highly contestable constitutional premises that would remake substantial parts of existing law, such as the claim that children should be treated as a suspect class or that the federal government has a constitutional obligation to take regulatory action to protect the lives or well-being of citizens against privately caused harms.  The latter claim, in particular, calls for the de facto overruling of DeShaney v. Winnebago County in the environmental context and the recognition of a new fundamental right for which there is little basis in current law (let alone the sort of history and longstanding tradition called for under Glucksberg).

Barring some dramatic change in the federal courts, I would not expect this case to go very far. As with Juliana, the question is not whether the plaintiffs will lose, but when and on what basis. There is also a question as to whether filing of this case, at this time, affects the Supreme Court's appetite to revisit climate litigation.

As I noted earlier this week, the justices appear to be giving serious consideration to granting certiorari in American Petroleum Institute v. Minnesota. On the merits, I do not believe that case is cert worthy, as I believe the arguments made by the energy companies clearly fail under current law (as court after court has concluded).  The strongest argument for granting certiorari in that case is not that it si legally warranted, but that the accretion of climate change litigation should command the High Court's attention before it gets out of control. For that reason, this was quite the week to file an ambitious new climate claim in federal court. (Apparently the plaintiffs wanted to file "on the 75th anniversary of the Universal Declaration of Human Rights.")

The plaintiffs in Genesis B. v. EPA are asking for federal courts to pay more attention to climate claims. I would suggest they should be careful what they wish for.