By Ryan Dreveskracht
As sovereign nations, Tribes must take great efforts to fully exercise their rights, often in the face of the severe economic, societal, and environmental challenges. Tribal sovereignty, culture, and ways of life are profoundly tested in these times by the added challenge of climate change, particularly in the Pacific Northwest. According to a 2011 National Wildlife Federation study:
Tribes are disproportionately impacted by rapidly changing climates, manifested in ecological shifts and extreme weather events, as compared to the general population, due to the often marginal nature and/or location of many Tribal lands. The high dependence of Tribes upon their lands and natural resources to sustain their economic, cultural, and spiritual practices, the relatively poor state of their infrastructure, and the great need for financial and technical resources to recover from such events all contribute to the disproportionate impact on Tribes.
Among the study’s recommendations were an increase in federal funds for climate adaptation programs on tribal lands; greater exploitation of renewable resources, including solar power, on Indian reservations; and stronger collaboration among tribes on natural resources and climate change programs. The group also faulted the Department of Interior for not providing the money needed to help Indians deal with climate impacts they had virtually no part in creating.
Last year, the Interior Department responded with a drop in the bucket, making a mere $8 million available via its Tribal Climate Resilience Program. While the support is definitely needed, let’s just say that, absent litigation forcing it, Interior does not have a great track record of fulfilling its full fiduciary obligation to Indian Country. See e.g. Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1462 (10th Cir. 1997) (Tribe prevailed in proving “chronic underfunding” of Interior’s real estate, natural resources, law enforcement, Aid to Tribal Government, and water rights programs).
Lawsuits alleging harm to tribes caused by global warming have generally failed in the initial stages, however, because courts have found a lack of “standing” due to the plaintiffs’ alleged injury not being “fairly traceable” to the conduct of the defendant. See e.g. Native Vill. of Kivalina v. ExxonMobil Corp., 663 F. Supp. 2d 863, 870 (N.D. Cal. 2009), aff’d, 696 F.3d 849 (9th Cir. 2012); see also Communities for a Better Env’t v. E.P.A., 748 F.3d 333, 338 (D.C. Cir. 2014) (same); People of State of California v. Gen. Motors Corp., No. 06-05755, 2007 WL 2726871, at *6 (N.D. Cal. Sept. 17, 2007) (no nuisance cause of action because regulation of global warming deemed a “policy decision of the kind reserved for the political branches of government”).
A new ruling from the U.S. District Court for the District of Oregon may have created an inroad, however. In the 100-page complaint in Juliana v. United States, No. 15-1517 (D. Or.), a group of younger individuals (aged 8-19) asserted harm from carbon pollution because of federal government action and/or inaction allegedly resulting in climate destabilization and ocean acidification. The plaintiffs sued the United States and various government officials and agencies, alleging that:
· The government has known for decades that carbon dioxide (CO2) pollution has been causing catastrophic climate change and has failed to take necessary action to curtail fossil fuel emissions.
· The government and its agencies have taken action or failed to take action that has resulted in increased carbon pollution through fossil fuel extraction, production, consumption, transportation, and exportation.
· The current actions and omissions of government make it extremely difficult for plaintiffs to protect their vital natural systems and a livable world.
· The actions and omissions of the government that increased CO2 emissions “shock the conscience,” and are infringing the plaintiffs’ right to life and liberty in violation of their substantive due process rights.
· The government has violated plaintiffs’ equal protection rights embedded in the Fifth Amendment by denying them protections afforded to previous generations and by favoring short term economic interests of certain citizens.
· The government’s acts and omissions violate the implicit right, via the Ninth Amendment, to a stable climate and an ocean and atmosphere free from dangerous levels of CO2.
· The government is violating the public trust doctrine, secured by the Ninth Amendment, by denying future generations essential natural resources.
As is par for the course in these type of climate change suits, the United States filed a motion to dismiss, arguing that because the “chain of causation involves numerous third parties whose independent decisions collectively have a significant effect on plaintiffs’ injuries, the causal chain [is] too weak to support standing at the pleading stage.”
Last Friday, in a decision that can only be described as monumental (Judge Coffin, who authored the opinion, himself opined that the lawsuit was “unprecedented”) the court disagreed:
[T]here is an alleged strong link between all the supposedly independent and numerous third party decisions given the government's regulation of CO2 emissions. . . . If the allegations in the complaint are to be believed, the failure to regulate the emissions has resulted in a danger of constitutional proportions to the public health. Presumably, sweeping regulations by this agency (the EPA) alone could result in curtailing of major CO2 producing activities by not just the defendant agencies, but by the purported independent third parties as well. At this pleading stage, the court need not sort out the necessity or propriety of all the various agencies and individuals to participate as defendants, at least with respect to issues of standing. For now, it is sufficient that EPA’s action/inaction with respect to the regulation of greenhouse gases allegedly results in the numerous instances of emissions that purportedly cause or will cause the plaintiffs harm.
In ruling that the lawsuit may proceed, Judge Coffin also stated the following in his decision:
The debate about climate change and its impact has been before various political bodies for some time now. Plaintiffs give this debate justifiability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society. . . . It may be that eventually the alleged harms, assuming the correctness of plaintiffs’ analysis of impacts of global change, will befall all of us. But the intractability of the debates before Congress and state legislatures and the alleged valuing of short term economic interests despite the costs to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by government. This is especially true when such harms have an alleged disparate impact on a discrete class of society.
The government has until next Friday to appeal Judge Coffin’s order, and they surely will. Given the potential that this ruling has to open the courthouse doors for tribal interests—a group that, remember, is “disproportionately impacted” by global warming and thus has more of a chance to chance to survive dismissal even if Judge Coffin’s order is ultimately overruled—this is one that Indian Country should be keeping a close eye on. Using Juliana as a playbook, tribes harmed by global warning now have a very strong chance to overcome the procedural barriers that previously precluded governmental accountability in this arena.
Note: The above graphic was obtained from Bob Weinhold, Climate Change and Health: A Native American Perspective, 118 Environ. Health Perspect. A64, A64 (2010).
Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle. His practice focuses on representing tribal governments and businesses in gaming, public affairs, taxation, and economic development. He can be reached at (206) 909-3842 or firstname.lastname@example.org.