A battle between youth and government over climate change could be won before one of two courts: law or public opinion.
At the moment, it appears the documentary “Youth v Gov” will reach movie screens before Juliana v. United States gets a date before a jury. The film by Bozeman-based director Christi Cooper landed the centerpiece designation at next week’s Big Sky Documentary Film Festival. But last week, the court case it’s based on got rejected by the U.S. 9th Circuit Court of Appeals — clearing the way for a possible hearing before the highest court in the nation.
Both projects involve a group of once-children, now young adults, who sued the federal government for six decades’ worth of damage to their environment and atmosphere. Some of the original plaintiffs and attorneys, as well as the foundational legal arguments, originated in Montana.
“About 10 years ago, I helped put together a lawsuit based on the Montana Constitution’s right to a clean and healthy environment,” said Tom Beers, a retired Montana trial lawyer. “We mounted these in all 50 states. The Montana one was the lead case for the whole project, and we felt we had a good shot with it. We took it directly to the Montana Supreme Court.”
They did not win the case. But Missoula attorney Tim Bechtold, whose children were part of that original case, said it laid enough legal groundwork to launch a more ambitious federal case centered on Kelsey Juliana, one of the Bechtolds’ young friends.
“Kelsey is from Eugene, Oregon, and her parents are close friends of mine,” Bechtold said. “The movie focuses on four or five kids from different parts of the country, and tells the story of the legal process through those selected kids. This all started out when they were little kids in 2015, and now they’re big kids.”
The movie, “Youth v Gov,” follows that second cohort of children as they witness the harm climate change has inflicted on their lives. Cooper said during the filming, plaintiff Jayden Foytlin had her Louisiana home wrecked in 2016 during a thousand-year flood, while plaintiff Levi Draheim had to evacuate twice from his Florida barrier island home when hurricanes Matthew and Irma tore through.
“We ended up structuring the film around the three elements of legal standing,” Cooper said of the rules for who can make a claim in court. “Proving you’ve been harmed, proving the defendants have caused the harm and showing the courts can provide a remedy for that harm.”
That standing question remains the pivot point on which the case rotates. In their 2-1 decision, a trio of 9th Circuit judges made an almost-but-not-quite ruling:
“The panel held that: the record left little basis for denying that climate change was occurring at an increasingly rapid pace … the record conclusively established that the federal government has long understood the risks of fossil fuel use and increasing carbon dioxide emissions; and the record established that the government’s contribution to climate change was not simply a result of inaction.”
But then circuit judges Mary Murguia and Andrew Hurwitz wrote: “(T)he panel held that it was beyond the power of an Article III court to order, design, supervise or implement the plaintiffs’ requested remedial plan where any effective plan would necessarily require a host of complex policy decisions entrusted to the wisdom and discretion of the executive and legislative branches.
“The panel reluctantly concluded that the plaintiffs’ case must be made to the political branches or to the electorate at large.”
Dissenting Judge Josephine Staton countered that “the Constitution does not condone the Nation’s willful destruction. She would hold that plaintiffs have standing to challenge the government’s conduct(.)”
Article III is the part of the Constitution defining judiciary power. Bechtold said the majority essentially bailed out on the debate.
“They felt plaintiffs were asking them to adjudicate something they were uncomfortable with, and they said, ‘We’re afraid,’” Bechtold said. “I’m thinking — you’ve got lifetime appointments. What’s the harm here? Is there some sort of backlash?”
The circuit court’s decision split the case into two separate questions: Can someone prove that the government is responsible for policies that triggered climate change; and is the American court system the place to answer that question? Put another way, a judge may find someone guilty of bank robbery and impose a jail sentence as punishment. But that judge might not know how to punish the U.S. federal government for disrupting the climate, even if a jury decided the government was guilty.
“So it may come to the judge’s bench or the court of public opinion,” Beers said. “The legal basis is not just legitimate but profound. The Constitution provides a remedy in its language. But whether this Supreme Court will ever get there, I have no idea.”
Meanwhile, Cooper’s film has gotten there, at least to the point where the general public can see the argument as the young people have made it and judge for themselves. While she and her crew will miss the thrill of seeing a live audience react to their work, the remote format of the Big Sky Documentary Film Festival makes it possible to do additional things a week in Missoula wouldn’t allow.
For example, after the initial screening at 5 p.m. on Feb. 24, Cooper and Kelsey Juliana will be able to do a live question-and-answer session with viewers from around the world via Zoom. On Feb. 26, she’ll present again to middle and high school students through the festival’s educational portal.
“We typically aren’t able to do that,” Cooper said. “The lawsuit was the red thread, the backbone that is our journey through this story. But it’s also about the experiences of these young people. It’s about how growing up as a young person with this case as the backdrop of your childhood. Some of them have become young adults in this process. What impact does that have on your life?”