Founder of Our Children’s Trust on what the end of Juliana v. US means for youth and climate policy

Attorney Julia Olson founded the nonprofit public interest law firm Our Children’s Trust in 2010 in Eugene. Five years later, she filed a lawsuit on behalf of Kelsey Juliana and 20 other youth activists in Oregon and elsewhere. Their contention was simple on its face: youth have a right to a stable climate, just as they have a right to clean water and clean air. It used the public trust doctrine in a novel way at the time.

Since the suit was filed in 2015, Juliana v. U.S. has been in and out of district and appeals courts and was cleared to go to trial in 2023. But last year, the 9th Circuit Court of Appeals granted the federal government’s motion to dismiss the case. The U.S. Supreme Court recently declined to intervene, but dismissed the case “without prejudice,” enabling the case to potentially be filed at a later time. Olson joins us to talk about what the last decade has shown her and the “Juliana 21” about the most effective ways to challenge climate change policy in the U.S. today.

Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.

Dave Miller: From the Gert Boyle Studio at OPB, this is Think Out Loud. I’m Dave Miller. Attorney Julia Olson founded the nonprofit public interest law firm Our Children’s Trust in Eugene in 2010. Five years later, she filed a lawsuit on behalf of Kelsey Juliana and 20 other youth activists in Oregon and around the country. Their contention was pretty straightforward: that youth have a constitutional right to a stable, livable climate. The case, called Juliana v. U.S., then had a dizzying 10-year legal odyssey, in and out of district and appeals courts with seemingly never-ending petitions and responses.

Now, it seems there is an end. Last year, the 9th Circuit Court of Appeals granted the federal government’s motion to dismiss the case. Last month, the U.S. Supreme Court declined to intervene. Julia Olson joins us now to talk about the last decade, the so-called “Juliana 21” and the future of climate change law. It’s great to have you on Think Out Loud.

Julia Olson: Thanks, Dave. It’s great to be here.

Miller: Can you help me understand first, just as a non-lawyer, what was unique about the legal strategy that you employed in the Juliana case?

Olson: In Juliana, we, for the first time, brought claims under the Fifth Amendment of the U.S. Constitution, which protects people’s rights to life, liberty and property. And we argued on behalf of 21 young people that the federal government’s fossil fuel energy system was infringing those rights by causing and contributing to the climate emergency, and the impacts to the health, safety and homes of those plaintiffs. And that was a novel use of the Fifth Amendment in this time of climate emergency.

Miller: So in other words, this wasn’t framed as a question of some specific environmental policy, but a much more fundamental constitutional right?

Olson: Yeah. The U.S. Constitution protects people’s rights to life and liberty from infringement by your government. When we started digging into the causes of climate change and the root policies that were really at play here, what we figured out by going back and doing research at presidential libraries going all the way back to President Eisenhower, we learned and uncovered is that the U.S. federal government has known that if we continued to burn fossil fuels as the basis of our energy system, that it would cause the catastrophic climate harms that we’re experiencing today. And they’ve known that since at least the 1960s.

I think maybe what people don’t fully appreciate is that the federal government, through many, many policy choices, is promoting fossil fuels as an energy source. Even over the course of the 10 years of the Juliana case, what we saw is from President Obama, President Trump and President Biden, and now, again, the new Trump administration, that the United States became the top oil and gas producer in the world. Just last summer we reached historic levels of oil production in the United States, more than any other country has produced in history. So it’s that system of really putting fossil fuels at the forefront of energy production and keeping it there that is unconstitutional, because of the dangers it’s posing to the bodies of young people, their physical health, their mental health, and their literal safety in their homes and in their communities. The government shouldn’t be doing that.

Miller: You said that a lot of the public doesn’t understand the myriad policies that our government is doing that enables this. So what are some of those specific actions? Because the government is not ExxonMobil, but you’re saying they do have a huge role to play here. What are the things that are happening that, in your argument, makes the federal government culpable?

Olson: I think we need to separate out the present moment and the policies of this new Trump administration from what had been happening over the past 50 years. And that is a lot of our fossil fuels come from federal public lands. The federal government approves the extraction of those fuels. So that’s a big piece, maybe a third of the fuels.

And then every aspect of fossil fuel combustion that happens in the United States is permitted and allowed by the federal government. As an example, the Environmental Protection Agency was instituted by the Nixon administration and set up by an act of Congress to control air and water pollution to make communities safer for people, to protect human health and human welfare. And EPA’s sole job is to really limit pollution to levels that are safe for citizens and the people who live here. So every power plant, refinery, all of the wells that emit methane, all of these things require permits over the pollution. And what EPA has systematically done for decades is permit unsafe levels of greenhouse gas pollution from that fossil fuel use.

And then the federal government is responsible for approving all of the transportation of fuels around the country, the imports of it and the exportation. So a lot of the fossil fuels that are extracted from the United States today get exported to other countries where they are burned there, even as we transition to more renewable energy domestically.

Miller: I remember hearing years ago that simply getting to discovery, the required release of information, in this case from the federal government, that that would be hugely significant and could have big ramifications. What kind of information were you hoping to get, and to get on the record?

Olson: The U.S. Department of Justice really blocked us from doing a lot of discovery, so we went around that process and focused more on all of the publicly available information. We have tons of thousands of pages of government records and documents that really show how entrenched the federal government is in our energy system. You mentioned companies like Exxon and Chevron, they depend on the support of the federal government for their operations. I mentioned the leases of lands that allow them to extract fuels, but the federal government has also for decades subsidized those industries with tax benefits. The Department of Energy actually developed the technology for fracking that happens today and that is the majority source of the gas that’s produced. The industry couldn’t afford to develop that technology. So our federal government did the research and development for them. And that continues today.

I think what’s really important about this is we’re now at a moment where the emergency of climate change is clear. And we have a president in the White House who has made it the directive of the federal government to double down on fossil fuel production and use, and has directed that clean energy sources like wind, solar and EV technologies, that those be limited, and that the government not support those and in fact stand in the way of them.

Miller: And in fact, strike words like “climate change” or “resilience” from federal websites. I do want to talk more deeply about the current administration. There’s a lot to get to there, but I want to stick with this case first because there’s so much to get to there as well.

So as you were saying, you had been hoping to get more from the federal government in discovery, but were blocked effectively in a lot of ways by the U.S. Department of Justice. And a lot of, if I understand correctly, what did end up in the record was already publicly known. Is it an unknown unknown, what you didn’t get? Or do you have a sense for what was there that simply couldn’t have been introduced?

Olson: I’m sure that there is more documentation of the federal government’s intimate connection with the fossil fuel industry and support of it. But I think we had more than enough to prove the case. And a lot of the documentation that we uncovered and that we worked with experts on is actually presented in a book written by James Gustave Speth, and it’s called “They Knew.” It really documents the 50-plus years of knowledge of the federal government about the harms that would be happening if they continued their policy pathway of supporting fossil fuels. It’s an outdated way of producing energy when we have so much new technology that can eliminate this pollution that’s destroying the climate system that we all depend upon for our lives, our health, our food, everything.

Miller: Judges on the Circuit, it seems like a majority of a panel agreed with you on this line of reasoning. One of the rulings had this line: “A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change and that failure to change existing policy may hasten an environmental apocalypse.” But that same court wrote that reluctantly, the relief you were asking for was beyond its constitutional power. Rather, they wrote, “the plaintiff’s impressive case for redress must be presented to the political branches of government.”

What were you asking the court to force the federal government to do?

Olson: There were two different rounds of the Juliana litigation, I think it’s important to point out. What led to that decision in 2020 by the 9th Circuit Court of Appeals was the first version of the complaint. And in that complaint, we had asked as part of a remedy for the federal government to prepare a comprehensive climate recovery plan. So for all of the agencies and departments in the federal government that work on energy policy and work on pollution control, that they come together and figure out a plan for transitioning the United States off of fossil fuel energy in order to protect the safety of the people, and especially the children.

The court found that that remedy of requiring a plan was outside the scope of what it could order. And we disagree with that ruling. And just as a little side note, we got the idea for a plan as a remedy from prior civil rights litigation, like in the segregation context, where school districts were ordered to prepare plans for integration, bussing systems were ordered to prepare plans, housing systems. There was a case out of California about prison reform where the prison system was required to prepare a plan. So this was a pretty typical remedy, and we think the 9th Circuit just blew it.

Miller: Let me see if I can understand the legal argument here, again as a non-lawyer. Is it one of scale? Was the court saying, or would the court say if they were here with us right now – these judges and the federal appeals court of the 9th Circuit – yes, there’s desegregation, there’s bussing, there’s housing redress, but the scale of what would be required here in terms of phasing out fossil fuel emissions and ending oil leases, fossil fuel company subsidies, phasing out by judicial order the technology that underpins basically our entire economy, that the scale changes the legal equation? Is that part of their argument?

Olson: Just stepping back one step further, what the court was looking at is whether the plaintiffs had standing to bring their claims and whether the court had the jurisdiction to hear the case. So none of this was even yet on the merits. We were arguing about can we have a trial? Can we put forward the evidence? And part of what a trial would have shown is the viability actually of the federal government shifting policies towards clean energy, and really facilitating a transition instead of facilitating a dangerous fossil fuel system. So I just wanted to make that point clear.

I think for the judges, what they were hung up on more than anything, was not the scale of the fossil fuel energy system. I think it was the scale of climate change. They mistook their role, really fundamentally misunderstood their role. Their role was not to solve climate change globally. Their role was to look at the conduct of the federal government and decide whether it was constitutional or not – is it infringing the rights of young people – and make a declaration of that. The court sort of conflated global climate change with the case and said we can’t solve global climate change. And that wasn’t what we were asking them to solve. So they made a fundamental mistake.

That led us to round two of Juliana. We went back down to the district court after that 2020 ruling, and we asked Judge Aiken, our federal judge here in Eugene, Oregon, if we could amend the complaint to fix that piece that the 9th Circuit was concerned about. She said yes, we were moving forward to get a new trial date on this amended complaint when the Department of Justice took us back up to the 9th Circuit on a rare procedure called mandamus, and they summarily dismissed the case in a one-page opinion.

So that amended complaint that asked for a simpler form of relief and that clear constitutional ruling was never decided by any court, other than Judge Aiken saying that we can move forward to trial. So it’s a complicated procedural history but important point.

Miller: I was struck by a quote I saw in The New York Times a couple of weeks ago about that recent Supreme Court decision. It was from Patrick Parenteau, an environmental lawyer in Vermont who, if I read this article correctly, is supportive of what you’re pushing for, but questioned the strategy of taking this particular question up to the current court. He’s quoted as saying this: “Be careful what you ask for from this court. If you want an answer to this question, you probably will not like the answer you’re going to get.”

My understanding of that is he’s saying if this were fully taken up by the court, it’s possible that they would not just agree with the 9th Circuit, but they might strike down other aspects of environmental law or climate change regulation that you, for example, might not want them to do. I’m curious what your response is?

Olson: There are a lot of law professors and lawyers out there who, I think, operate from a place of fear about what courts may do if we bring cases in front of them. I have a different perspective. I think we have, we still do have, a vibrant democracy and it has three branches of government. Those of us who want to protect the rights of children and try to do something to stop climate change, we need to be operating in all three branches. And if we don’t bring the stories of the people being harmed to our courts and continue to advocate for their rights under the U.S. Constitution and under state constitutions, then the law will continue to be defined by those on the very far conservative right who want to keep fossil fuels as king in our country. Because they will continue litigating and they will bring cases to the Supreme Court.

In fact, this term at the U.S. Supreme Court, they’re deciding two cases about this issue of standing and redressability, that was the same issue presented in Juliana. And they chose not to take up that question in the Juliana case, but they will decide it in two other cases this year. And we’ll have more clarity about what role courts will play at the federal level in terms of redressing injuries that people bring before them.

Cases get decided and the law develops. And if we choose to not be in the process, we step out and we don’t bring these stories forward, the law is not going to move in a favorable direction. I think it’s one of the great successes of the Juliana case. I know that Professor Parenteau at Vermont Law teaches Juliana in his classes. There are law professors around the United States, and even in other countries like China and India, professors we’ve spoken to who are teaching the Juliana case in their climate and environmental law courses.

So it has changed the way people think about this question, and has really ignited a global movement to reexamine children’s most fundamental rights in the context of their greatest threat today, which is climate change.

Miller: I want to turn to two of your organization’s wins – these were both at the state level in different states – starting with Hawaii. What was at stake in this case?

Olson: Hawaii, we represented young people, including Native Hawaiians, who were suing over the transportation system in Hawaii. Hawaii is actually a state that has really great law on the books about transitioning off of fossil fuel energy. They have good deadlines set in terms of trying to get to zero emissions by 2045. But their transportation sector was going in the opposite direction and emissions were increasing. The Department of Transportation didn’t really have a plan as to how to bring emissions down. So we sued under the Hawaii Constitution, which protects the young people’s rights to a clean and healthful environment and to public trust resources.

We were about a month away from trial in that case when the state came to the settlement table and said, “We want to stop fighting the youth of our state and we want to work with them.” So this groundbreaking settlement agreement we reached last summer requires the state of Hawaii to transition their entire ground transportation system and their inter-island marine and air transit to a zero emission system by 2045. It’s the first time in history, in the world, where we now have all three branches of government working together towards that goal. The court has agreed to keep jurisdiction over the case and monitor things for 20 years. The state is working closely with the youth plaintiffs and other youth across the islands to develop the plans and policies needed to transition to zero emissions. And it’s just a huge success story of people working together towards this common goal of protecting the islands.

Miller: That’s a blue state. Montana is the other example of a legal win, obviously a very different state, a very red state. What can you tell us about Held v. Montana?

Olson: Held v. Montana is also a state constitutional case. There, the plaintiffs challenged laws that were on the books in Montana that really required the state to support and facilitate fossil fuel activities, including a lot of extraction; Montana is a big fossil fuel extraction state. And at the same time, they had laws that said, “turn a blind eye to climate change,” and directed the agencies of the state who were permitting projects for fossil fuel development to not consider climate change when they were making those decisions.

So we challenged those laws as unconstitutional. And that case led to the first trial in history on these questions of whether governments are violating the fundamental constitutional rights of young people through their policies. We had a seven-day trial in the summer of 2023. We won an incredible opinion from that trial judge. She laid out in 100 pages all of the factual findings that the young people and all of the experts had presented, showing that, yes, this is an infringement of the rights to life, dignity, equal protection of the law and a healthy environment for these young people.

We then went up to the Montana Supreme Court because the state appealed that decision. In December of just this last year, 2024, we won in the Supreme Court in a 6 to 1 opinion that upheld the entirety of the lower court’s decision. So really an incredible win for the youth of Montana, who now get to say to their state, in every decision they make, that if you continue to allow more climate pollution from fossil fuel activities, that’s an infringement of our fundamental constitutional rights.

Miller: What do you see as a connection between these cases and the current push in Oregon to have a constitutional amendment at the state level?

Olson: That is really another, I think, result of the work of the Juliana plaintiffs and many of the other youth that Our Children’s Trust represents, inspiring people across our country to codify in state constitutions the right to a healthy environment, the right to a climate system that sustains life. So there is a great coalition of organizations in Oregon working on that, it’s called OCERA. We’re really excited that there are members of our state legislature pushing this forward and citizens really backing it.

I think that the key thing here is these rights to live in a healthy environment, to breathe clean air, to drink pure water, to have climate stability that’s not disrupted by fossil fuel use, those rights are what we call inalienable rights. They’re inherent in just being human and walking the earth. Governments don’t need to grant us those rights. But when we codify them, when we write them into our constitutions, it makes it really clear for everybody that this is a guide star, and we’re going to measure government policies against these fundamental rights and make sure that government’s moving in the right direction.

Miller: What is it like for you personally to be continuing to do this work now, when the current administration has such a deep interest in environmental deregulation and the expansion of fossil fuel extraction and infrastructure?

Olson: It makes the work that Our Children’s Trust is doing even more urgent than it was in 2010 when I started the organization. I think young people need good lawyers representing them right now. They are going to be the most harmed by what this new administration is trying to accomplish, which as you said, Dave, it’s to promote fossil fuels, it’s to try to be a hurdle between new clean renewable energy like wind and solar coming online.

There’s so much that is dangerous about what this administration is doing. But it’s also harmful economically to people. I think one reason people voted for Trump was because they were concerned about the price of eggs or what things were costing them. Well, wind and solar energy are the cheapest forms of energy today. And the only reason they get more expensive is because of all of the regulatory hurdles and roadblocks to bringing them online, a system that still favors fossil fuels. We don’t need fossil fuels anymore. This government is currently determined to make sure that that energy source is our primary source of energy.

So Our Children’s Trust is preparing another case against this administration. We’re not going to stop. We’re going to be there representing young people all the way, and we’re working with youth, scientists and professors, people in academia, to really tell the fuller story of not just these fossil fuel policies, but as you also mentioned, the policies the administration is pushing to chill speech around climate change, to discriminate against people who are trying to get the science out there and work on this crisis …

Miller: I just wanted to thank you and say we are out of time. But Julia Olson, thanks very much.

Olson: Thank you, Dave. I appreciate it.

Miller: Julia Olson is founder, chief legal counsel and co-executive director of Our Children’s Trust, which, 10 years ago, brought the Juliana v. U.S. case that aimed to force the federal government to stop supporting the extraction and use of fossil fuels. The case was dismissed by an appeals court last year. Last month, the U.S. Supreme Court declined to reconsider that decision.

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