By Seamus McGraw
Does the U.S. Constitution, with its guarantees of liberty and privacy, also impose an obligation on the part of the federal government to protect those wild places where liberty and privacy can best be enjoyed?
That is the question the Animal Legal Defense Fund is hoping to test with a groundbreaking lawsuit filed Monday in U.S. District Court in Oregon.
The suit marks a unique twist in an emerging series of so-called Atmospheric Trust cases, in which defendants allege that actions by the government have helped fuel climate change, which has degraded the environment and violated individual rights. In this case, the suit alleges Americans’ constitutionally protected right to “to seek liberty and privacy in the wilderness . . . the right to be left alone . . . has been impeded substantially by climate change,” said Carter Dillard, senior policy advisor for the Animal Legal Defense Fund.
“The argument is pretty straightforward in that the government’s actions and inactions with regard to climate change are impacting wilderness areas in dramatic ways and in some cases in life-threatening ways,” Dillard said.
In effect, Dillard said, the suit contends that those changes, and the government policies that contribute to them—including subsidies to the fossil fuel industry and agricultural interests—have already harmed the plaintiffs, among them scientists, wildlife advocates and people who enjoy the outdoors. Dillard said those harms are especially clear in areas designated as protected under the Wilderness Act.
“Areas established by the Wilderness Act are protected based on their solitude,” Dillard said. “The very concept of wilderness has to do with solitude. That . . . matches up with documentation at the foundation of the country that refers to the right to be free from others.
“If you have the right to be left alone, and the quintessence of being left alone is being in the wilderness and if that area is being degraded, if not attacked, by our own federal government so that people can’t be left alone due to the unwanted influence of climate change, isn’t the government violating the right to freedom and liberty?” Dillard said.
The lawsuit, spearheaded by Jessica Blome of Greenfire Law of Berkeley, Calif., names the Department of Interior, the Department of Agriculture and other agencies as defendants.
The suit is the latest in a series of cases brought by activists alleging that the federal government’s failure to address climate change and to adequately protect essential public resources violate life, liberty and property rights.
Monday’s lawsuit was filed just three days after Supreme Court Chief Justice John Roberts issued a stay in the landmark Juliana v. United States case in which 21 young people sued the federal government alleging that it had known for decades that carbon emissions endangered the climate and yet allowed and encouraged fossil fuel production to continue, thus violating the plaintiffs’ right to life, liberty and property.
The court stayed the proceedings to give the plaintiffs time to respond to the government’s motion to halt the case before its scheduled trial on Oct. 29. The government is asking for an extraordinary writ of mandamus, a rarely granted request for a higher court to overrule a lower court before a trial or verdict. The Justice Department is arguing that the trial is too burdensome for the government and it would threaten the separation of powers.
A similar case, filed by 13 teenagers in the state of Washington, was dismissed in August when a county judge ruled that the issues in the case were political and not legal in nature.