By Julia Olson & Andrea Rodgers
We are the attorneys who represent the eight courageous youths who presented Gov. Inslee with an unprecedented climate protection opportunity to issue rules to protect their future from carbon pollution. We write not just as their advocates, but as mothers of young children as well. We do not now, nor have we ever, questioned Gov. Inslee’s professed commitment to addressing climate change.
But as kids know too well, actions speak louder than words and action based on solid science is sorely lacking at all levels of government, including within Gov. Inslee’s administration. What we have asked Gov. Inslee for is a Climate Recovery Rule for the state of Washington, detailing and describing how Washington will use its existing authority to cap and draw down GHG emissions in a manner consistent with the best current scientific understanding of what it will take to protect not just these eight brave youths, but all of us, present and future generations alike.
We would like to clarify that we never “sued the governor” as part of this litigation. Rather, we sought to support his desire for climate action by filing a petition for rulemaking with the Department of Ecology asking that the agency use its existing legal authority to cap and regulate carbon dioxide emissions based upon best available climate science. The goal was to give the governor an opportunity to take science-based action on climate. Instead of granting the petition and taking advantage of the opportunity, Ecology denied the petition claiming that it was doing enough to address climate change, even though its own documents said exactly the opposite. In fact, in its own legal brief, Ecology was transparent about its authority to do more if it wanted: “Ecology does not argue that it lacks the authority to adopt additional greenhouse gas emission standard[s] if it chooses to do so. Rather, the argument is that Ecology is not required to adopt additional standards.”
Even after the court sent the matter back to Ecology to consider current climate science, including the agency’s own findings that climate change was spiraling out of control and more aggressive emission reductions were needed, Ecology still refused to do its job.
It was not until the kids met with Gov. Inslee in July 2015 that he finally directed Ecology to promulgate the Clean Air Rule. Sadly, the governor directed Ecology to target the rule to the outdated and completely inadequate emissions reductions determined in 2008, even though his agency recently admitted those standards “should be adjusted to reflect the current science [and] need to be more aggressive in order for Washington to do its part to address climate risks and to align our limits with other jurisdictions that are taking responsibility to address these risks.”
The governor and Ecology have vigorously defended against our youth plaintiffs’ case, and have rebuffed all attempts we have made to work together towards a scientifically defensible Climate Recovery Rule. Even after we prevailed in court again in April 2016, to date Ecology and the governor have ignored our requests to meet to discuss implementation of Judge Hill’s order.
The legal findings set forth in Judge Hill’s November 19, 2015 decision are remarkable and make it clear that the governor has a broad panoply of executive authorities that can and should be utilized to facilitate science-based action on climate. There are some in the environmental community who support the proposed Clean Air Rule that has been described as “far from perfect.” Shouldn’t a court order acknowledging Ecology’s broad constitutional and statutory responsibilities to take science-based action on climate change and requiring the agency to act quickly be enough to embolden the agency to issue a rule that is better than “far from perfect?.” As mothers, we are puzzled by the ignorance of the scientific reality that we are running out of time to avoid catastrophic climate change that threatens survival and safety of us and our children. Waiting on the legislative branch to protect our climate gets us nowhere. But the court has made it clear that we don’t need to wait for legislation that will likely never come: “[T]he State has a constitutional obligation to protect the public’s interest in natural resources held in trust for the common benefit of the people of the State.” The time is now to put that obligation into action.
Some suggest that as lawyers, we should not be targeting a “green governor”, but should be “going after the oil companies.” A few years ago attempts were made to hold the oil companies responsible, but were rejected by the U.S. Supreme Court, on the theory that the Clean Air Act (a weaker version than we have here in Washington) will solve climate change. Oil companies and their representative trade associations are defendants in our constitutional climate case against the federal government pending in the District of Oregon. There will also be other attempts of course to hold polluters accountable, but while polluters should pay a price for profiting over knowing destruction of our planet, it is our sovereign governments that have allowed, and oftentimes facilitated, the pollution to occur in the first place. Only sovereign governments have a fundamental responsibility to their citizens to protect our common natural resources for present and future generations. That is not Exxon’s job. That is, however, Gov. Inslee’s job.
Fortunately, we live in a constitutional democracy with not two, but three branches of government and the judicial branch has drawn the constitutional line to protect our children. The politicians in power cannot squander the resources of our state at the expense of all future generations.
The stark reality is that the leading climate scientists tell us that one percent annual reductions of GHG emissions, which Ecology has proposed, are essentially useless. Remember, that means the state endorses continuing 99% of annual GHG pollution when we need at least 8% per year reductions in carbon dioxide pollution. The “far from perfect” approach will get us nowhere other than locking in additional warming. The glaciers will still melt, the seas will still rise, the oceans will acidify, communities will be relocated, and we and our children will suffer. These problems are happening today and when you look at this planet through the lens of history, you see that we are already living in a changed world. This is simply not a problem that can be handled by half-measures. Indeed, history tells us that the pursuit of the “far from perfect” approach stands as a roadblock, not a catalyst, for future action. Some call us radical in demanding adequately aggressive climate action. Yet we are only listening to what the scientists say we need to do and what our children demand. Is it really radical to want to protect our children and save their future?
To add to the public’s frustration, Gov. Inslee has chosen to appeal the judicial decision in the youth’s favor, after he made public statements that he was happy about it. Understandably, the kids and his constituents are rightly dismayed when a politician says one thing and does another. But political doublespeak aside, we face a larger problem. Not only do we not have a Climate Recovery Rule for the state of Washington based on current science, like the youth have demanded, but Gov. Inslee is wasting precious time, and an unprecedented opportunity, with a proposed Clean Air Rule designed more to capture headlines than to reduce emissions. A true leader not only tells us what we want to hear, but leads us where we need to go.
Attorney, Western Environmental Law Center
Executive Director & Chief Legal Counsel, Our Children’s Trust