Our Children’s Right to a Livable Future

There are 6,653 words in America’s most important founding documents: the Constitution, Bill of Rights, and Declaration of Independence. The words “children”, “future”, and “generations” are not among them. That the supreme law of the land protects the welfare of unborn generations is only implied, and only once. The Preamble of the Constitution says the document’s purpose is to ensure tranquility and promote the general welfare of “ourselves and our posterity.”

But what if the Founders had known we would be capable someday of depriving future generations of their general welfare — their good health, peace, and safety? Not just the next generation, but all of them. Not just in the United States, but worldwide. And not just temporarily, but in ways children could not fix or outlive.

Would they have made the rights of posterity stronger, clearer, and more enforceable?

Unborn children obviously cannot protect themselves. Even the children alive now have few ways to defend the quality of their lives. They do not sit in C-Suites, or shareholder meetings, or positions of power in government. They cannot choose the nation’s leaders by voting in elections.

They cannot count on current leaders to protect them. Presidents and their policies are temporary. So are laws. In America’s most important environmental law — the National Environmental Policy Act of 1970 (NEPA) — Congress declared that the government’s duty is to “create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” But unlike the Supreme Court, congresses are not bound by precedent. If they were, then recent congresses would have felt obliged by NEPA to take decisive action against climate change long ago.

Children have tried moral suasion and shaming to get adults to do something about climate change. There could not have been a more eloquent appeal than that made by 9-year-old Canadian Severn Cullis-Suzuki to an international conference in 1992, or a more forceful tongue-lashing than 16-year-old Gretta Thunberg’ delivered to the United Nations General Assembly in 2019. But the commitments nations have made to reduce their fossil-fuel pollution under the Paris accord remain inadequate to prevent climate change from becoming catastrophic and irreversible.

Despite increasingly dire warnings from scientists, substantiated by increasingly violent weather, the world’s 60 largest banks have invested nearly $4 trillion in fossil fuels since nations agreed to the Paris climate accord in 2015. When it last did the math, the International Monetary Fund found that governments were providing fossil fuels with nearly $5 trillion annually in direct and indirect subsidies. The 20 most advanced countries missed a golden opportunity to reduce their carbon pollution when they committed most of their COVID relief money to fossil rather than carbon-free fuels last year. By November, nations had allocated more than $230 billion to oil, gas, and coal compared to less than $150 billion to clean energy.

Fossil fuels still provide 80% of the world’s energy. Atmospheric concentrations of carbon dioxide today are the highest they’ve been in 4 million years, and they’re still rising.

As a result, children around the world are turning to the courts. Six years ago, for example, 21 American children sued the federal government, alleging in Juliana vs United States that it’s actively endangering their futures by promoting the production and consumption of fossil fuels by giving oil, coal, and natural gas producers access to public lands, as well as tens of billions of dollars in annual taxpayer subsidies. The children argue these and other energy policies violate their rights to “life, liberty, and property” under the 14th Amendment to the Constitution.

But the Justice Department under three presidents — Obama, Trump, and now Biden — has blocked their case from going to court. President Biden's position is especially disappointing. During his campaign, he promised to instruct the Attorney General to “strategically support ongoing plaintiff-driven climate litigation against polluters.”

One theory is that Biden does not want to appear to interfere in the Justice Department’s independence, as Trump did. But there is a world of difference between a president using the Attorney General and government lawyers for personal and political reasons versus instructing Justice to let the judiciary rule on the rights of children to protect their futures.

The case is controversial even among environmentalists. Critics worry it might backfire by giving the conservative Supreme Court an opportunity to establish an adverse precedent. But if the Court ruled children's futures are unprotected, the next step would be a campaign for a constitutional amendment.

States already are moving in that direction. Pennsylvania, Montana, and Massachusetts have done. For example, Montana’s constitution states “The state and each person shall maintain and improve a clean and healthful environment… for present and future generations.” It orders its legislature to protect “the environmental life support system from degradation.” At last report, Hawaii, Kentucky, Maine, New Mexico, New York, Oregon, Washington, and West Virginia are creating similar constitutional protections.

A “Green Amendments for the Generations” campaign promotes this, pointing out, “The sad truth is, our laws are designed to accommodate pollution rather than prevent it.”

But the first step is to determine whether the U.S. Constitution already protects present and future children from government policies that degrade the planet’s ability to support life. The nearly 82 million Americans age 19 and under deserve to know. The world’s nearly 2 billion young people ages 10 to 24, the largest such cohort in history, will watch closely. To find out, President Biden should let Juliana vs United States have its day in court.

Bill Becker is an author, journalist and lecturer on environmental issues. He is based in Golden, Colorado.