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Does climate change legally infringe on the rights of those yet to be born?

Meet the people suing the government on behalf of people who don’t even exist yet.

What is the relationship of democracy to time? To what extent should we legislate with future generations in mind? What do we owe to them, versus to ourselves?

These are existential questions that have all sprung recently from a slightly more concrete, and certainly more urgent, query: what if climate change is a violation of the rights of those yet to be born?

As you’re no doubt aware, last month an astonishing 8 million people from almost 200 countries took part in youth-led global climate protest. ‘Young people are starting to understand your betrayal’ the rightfully peeved Greta Thunberg warned attendees at the UN Climate Action Summit on 23rd September. ‘The eyes of all future generations are upon you. And if you choose to fail us, I say: we will never forgive you.’

This has been argued in the court system before. In 2015, a group of young people not yet of voting age filed a lawsuit in the commonwealth court of Pennsylvania and various state agencies. The suit argued that government representatives had failed to take necessary action to regulate their own activities, and the activities of corporations, consistent with the commonwealth’s role as a public trustee.

In the legal team’s language, the state was failing in its responsibility to ‘conserve and maintain public natural resources, including the atmosphere for the benefit of present and future generations.’

Whilst this suit was ultimately shot down, a similar case filed in Oregon – Juliana v United States – recently is currently wending its way through the court system with markedly more success. 21 plaintiffs aged 11 to 22 have recently taken aim at the level of federal government in the US, accusing the government and oil industry of ‘knowingly creating a national energy system that causes climate change’, despite thousands of scientific studies that proved beyond a doubt the harmful effect of greenhouse gases on the atmosphere.

By not only failing to regulate corporations that were the worst offenders of carbon emissions, but actively facilitating their actions, the case of Juliana v United States accuses the federal government of violating citizens’ constitutional rights to life, liberty, and property while also jeopardising essential public resources.

In Juliana, ‘future generations’ are explicitly named as stakeholders in the suit, represented through their ‘legal guardian’ as stipulated by the court regulations, who has taken the form of James Hansen. Hansen is a NASA scientist and activist whose daughter is part of the suit. So, technically the suit is Hansen suing on behalf of his future lineage. And, by extension, yours (if you choose to have one).

As you can see, suits that require accusations of premeditation and hindsight, and involve actants that themselves aren’t members of the constitution due to their not yet anatomically or atomically existing, are legally sticky. The federal government attempted to get the case dismissed on the grounds that the grievances are too broad. But, for the first time, such arguments were rejected.

It seems we’ve now reached a point where plausible deniability is no longer a valid excuse for constitutional powers when it comes to climate change. Despite climate change denial still existing, the effects on future generations of greenhouse gases and the negligence of officials failing to curb fossil fuel production and deforestation is finally being acknowledged.

Whether suits like this will require changes to worldwide constitutions themselves is a fascinating question. These cases and the school strikes dramatize a crucial aspect of the divide between democracy and the citizen we’re now seeing play out. The questions of intergenerational responsibilities and ethical duties across decades and centuries is more important now that it ever was before, and the time to turn it from a philosophical inquiry into concrete legislation is now.

We are all born in a society that we did not make, subject to customs and morals left over from previous generations, then we leave our own legacy for others to inherit. The project of government inherently requires navigating the tension between our immediate circumstances and what is to come.

Climate change calling into question the very possibility of a habitable planet means that we can no longer allow parties to prioritise short term thinking. Predicting the future may, and probably should, become a necessary part of business and federal practice.

There’s one aspect that likely effect the temporal antagonism more than any other: extreme inequality. In essence, the sacrifice required by the world affluent in order to combat climate change is exponentially larger than the sacrifice required by poorer people and nations. The fact that this sacrifice is directly tied to one’s own influence in creating the conditions for climate change in the first place is, unfortunately, unlikely to help. It relies on an unquantifiable commodity: guilt. I don’t know about you, but I don’t see the worlds top 1% throwing much of that around lately.

If a solution benefits everyone equally but costs only some economically, then it’s a hard sell. And it’s these people we need to hold accountable. The plucky US youths involved in Juliana are betting that it will be more effective to appeal to them on behalf of their own progeny, given that the plight of already extant citizens has failed to move them.

Thousands of years ago, the ancient Greeks defined democracy as the act of providing for the many, not the few. To this end, our movements must be guided by a seemingly simple question that seems incredibly difficult to implement in practice: what kind of legacy do we want to leave? With every action or failure to act, we help decide the future. And it’s our responsibility to cast our vote for what this future will be, even if we won’t live to see it ourselves.

We can only hope that the law courts follow suit.

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