S.2 E.8: Young People’s Climate Change Lawsuit

Learning for Life @ Gustavus host Greg Kaster interviews Gustavus student and climate change activist Nathan Baring '22.
Posted on August 12th, 2020 by

Gustavus student Nathan Baring ’22 discusses Julianna v. United States, a groundbreaking lawsuit in which he and 20 other young people are suing the federal government for its climate-damaging policies in disregard of scientific evidence.

Season 2, Episode 8: Young People’s Climate Change Lawsuit

Transcript:

Greg Kaster:

Learning for Life at Gustavus is produced by JJ Akin and Matthew Dobosenski of Gustavus Office of Marketing. Will Clark, senior communications studies major and videographer at Gustavus, who also provides technical expertise to the podcast, and me, your host, Greg Kaster. The views expressed in this podcast are not necessarily those of Gustavus Adolphus College.

Not every undergraduate can claim to be part of a groundbreaking class action lawsuit focused on holding the federal government broadly accountable for its climate damaging policies. Gustavus student Nathan Baring can. A native of Fairbanks Alaska and double major in biology and political science who just completed his sophomore year, Nathan is a plaintiff in the quite interesting and widely watched case of Juliana v. United States filed in 2015 in the United States District Court for the district of Oregon. Nathan has already achieved several academic distinctions at Gustavus, making the Dean’s and President’s lists, winning a political science writing award for 2020, and garnering an honorable mention in national competition for the Morris K. Udall scholarship.

In addition to his academic work and achievements, Nathan is active in the Gustavus environmental action committee and diversity leadership council, and has interned in the DC office of US Senator Lisa Murkowski of Alaska. Though Nathan and I have yet to cross paths in the classroom, I wanted to speak with him about his activism in part because of the way climate change has, in recent years especially, focused my own existential dread, and in part because my teaching encompasses the history of activism and protests in the US, including among students. Welcome Nathan, and I’m delighted we could connect via the podcast and appreciate your joining me somewhat early on a Sunday morning in Fairbanks to talk about the lawsuit, and your path to and involvement in it.

Nathan Baring ’22 is a plaintiff in a landmark climate change lawsuit.

Nathan Baring:

Well yeah, thank you very much. That was a very flattering intro, I haven’t really… I haven’t ever heard my name expressed like that before, so that was very wonderful. But yeah, just wanted to say that it’s only been two years that I’ve been at Gustavus, but it’s definitely played a significant role in my life trajectory so far, so this is really great.

Greg Kaster:

Well we look forward to talking… well, we. You and I look forward, we both look forward to hearing more about that later on, and I know our listeners will too. Let me begin by, begin here just asking you to talk a little bit about your own path to the lawsuit. If I’m right, correct me if I’m wrong, you first became involved when you were in high school?

Nathan Baring:

Yes, that’s correct. So basically what happened was, growing up being born in Fairbanks Alaska, as a next generation Alaskan, my parents moved up to the state on their honeymoon actually from Michigan in 1957 or 1959, one of those two. I can never keep them straight. But my mom was born in a small fishing village, or fishing town on the coast in south central called Homer. And so when she moved up to Fairbanks and had me, I already had that long family history. And one of the things that that informed was, when I reached about the age of 12, I started to learn how was Alaska and how was the Arctic more broadly changing basically, and how were weather patterns changing, how were climate patterns changing, wildlife migratory patterns, sea level rise, ocean acidification, et cetera. All of the things that we hear about when we talk about climate science.

And what that translated to was, at the age of 13, I wrote my first letter to the editor along those lines. And the feedback that I got almost instantaneously that really kind of lit a fire early on, basically was something along the lines of, “You are just a kid,” or, “You’re just a child, and up until you turn 18 basically…” this isn’t how they literally said it, but this is how it comes across. “Up until you’re 18, you are only able to be influenced by your parents opinion. Until you have the right to vote, you really do not have adequate political representation, because we don’t trust you to have the ability to form your own opinions.”

And that kind of was insulting of course, right? And that hit home for me. So I filed the lawsuit with the organization, Our Children’s Trust, in August of 2015, and that was when I was 15. And so now I’m 20, and so it’s been about five years.

Greg Kaster:

And I can only imagine how you felt insulted. It’s incredibly condescending to say that. Even some descriptions of the lawsuit, the children’s lawsuit or something like that, condescending. By the way, I’ve written lots of letters to the editor, I love doing that, so bravo for you. What about Our Children’s Trust, could you say a little bit more about that organization and its role in the lawsuit?

Nathan Baring:

Sure, sure. So Our Children’s Trust actually very much predates this lawsuit, but it is still actually a relatively new organization. So the executive director right now is Julia Olson. She’s an incredible, incredible lawyer. She’s been an environmental lawyer for, I’m not going to be able to get the number exactly right, but I’ll just say many decades. And when she watched An Inconvenient Truth by Al Gore, that’s my understanding of the real impetus for her basically founding this nonprofit. And what she aimed to do was to seek a legally enforceable, science based climate recovery plan basically. And that was… that’s broadly defined on purpose, because up until now, OCT as we popularly call it, it’s Our Children’s Trust, but OCT has now brought cases in all 50 states individually, including Alaska. And some of those states it’s been successful, some of those states it has yet to be successful. But they have a long track record.

And then not only that, but they have supported numerous and have continued to support numerous international lawsuits as well, and they’ve kind of developed a very groundbreaking legal strategy that has now been used in courts around the world. So the federal lawsuit is kind of the culmination of about a decade of legal strategy and individual state cases that have culminated in a broader system challenge at the federal level.

Greg Kaster:

And you’re remind us I think of something important, which is that Juliana v. United States is part of a whole legal universe of legal actions around climate change, and we can maybe get into that a bit more later. But for now, let’s focus on this particular lawsuit. My understanding is that it has raised some interesting arguments, and I wonder if you could just say a little bit about what the lawsuit alleges, but also the grounds on which it makes those allegations.

Nathan Baring:

Yeah, so it’s basically, it’s really important before I get into the legal argument, which I’m not a legal scholar. I do intend to go to law school, but I do my best to sum up the legal arguments in a digestible way. But what’s really important is, we look in this case at the very long history, uniquely in the US, just because we’re focusing on the US’s legal system, but the history of climate science, and more importantly, the history of when did politicians put in writing or in speeches or in academic papers et cetera, that they knew about climate change and they knew of its grave impacts for future generations? And so when we do that, we find things where we can first start establishing a real causal link between the knowledge and the government’s deliberate actions right around the beginning of the Johnson administration, right? Lyndon B. Johnson, and John F. Kennedy.

And right around that era is when they started talking about the effects of global warming, and it’s worth noting as well that we have as one of our expert witnesses Dr. James Hansen, who is very famous in the science world, because he was the very first climate scientist to testify to congress in 1988 about the grave implications for climate change on future generations. So he directed the NASA Goddard Space Center for 48 years. He was the institute’s longest director. So we have this kind of… we’ve established this history where the US government has deliberately acted against the knowledge of its best available science that dated back this 50 plus year period of time, and that was a choice on their part. And so what the lawsuit seeks to enforce now is that that’s no longer permissible, that was never permissible in the first place but it’s especially not permissible now. Because what you’ve essentially done for the last 50 plus years is gamble with an increasingly more risky climate system by continuing to ignore and deliberately act to further the energy system that destabilizes the climate system.

So what the lawsuit says, quite simply, is that there are two key provisions in the law that kind of are important here. One is a legal doctrine known as the public trust doctrine, and I don’t fully know the history of the public trust doctrine. I hope to learn more about it in law school. But essentially what it says is that there are certain common collective goods, or collective rights I guess you could say, or there are collective resources that the government holds in a trust because it has to. And we think of things like the water and the air, and basically things that cannot be privatized, just because they are so fluid everywhere. And that’s how its typically been used in legal cases in the past. And so one of the things that the lawsuit does is that it extends that doctrine very logically to the climate system, and essentially to the atmosphere.

And then the other important one is the fifth amendment, and specifically the due process clause of the fifth amendment, and also specifically the legal theories around what’s known as substantive due process. So essentially the rights to bodily autonomy, family security, things that are well established in legal literature. And the specific wording of the fifth amendment that says that your due process rights may not, or your rights to life, liberty, and property may not be taken away without due process. And so essentially what the case is arguing, to simplify that, is that the rights of current and future generations to life, liberty, and property, as protected by the public trust doctrine and the fifth amendment’s due process clause and substantive due process rights established by this long line of legal literature and the culmination of 50 plus years of deliberate actions by the US government to destabilize the climate system against their best-known science culminates in this moment where we bring them to court.

Greg Kaster:

That is an excellent summary, and it’s music to my ears for a couple of reasons. One, it involves, this lawsuit involves history and historical analysis, historical perspective, and two, as someone who I’m far from a constitutional historian but I am quite interested in the history of the constitution and the way history meets constitutional doctrine, especially the fifth amendment… and I gather, correct me if I’m wrong, that in a nutshell what the lawsuit is saying is that all of us have a constitutional right to a livable environment, is that a fair summary?

Nathan Baring:

Well, so you know the lawsuit seeks to recognize and substantiate basically the right to a climate system capable of sustaining human life, that we believe… I’m embarrassed that I forget which justice it was, but the justice that kind of encapsulated that there are kind of penumbral rights encapsulated in the constitution, where you could call them implied rights. So that is one avenue that we have chosen to take as a plausible argument. But I would also just say that we don’t… no, this is my own bias so I don’t speak for the organization here, but I personally don’t think we have to even go that route. I think it’s important that we are, but I also think that the constitution provides the remedy and the rights that we need to justify this case without even having to go that route either, even though I think that there’s plenty of grounds for it. But once again, I’m not a legal scholar, so I do understand why we take that approach.

Greg Kaster:

And I guess that the idea that there are implied rights, the ninth amendment, the rights that aren’t… just because a right isn’t enumerated in the constitution doesn’t mean there aren’t… that an individual doesn’t have other rights, individual states. But you just mentioned, you sort of just touched on what the ideal outcome would be of this lawsuit. So let’s assume you prevail. Tell us a little bit about what would change and how, at least ideally.

Nathan Baring:

Sure, sure. So it’s unfortunate, but we have to be relatively vague, which is always a little bit frustrating to me and everyone I tell, right? But what is important is that we seek the implementation of a national plan that aims to reduce carbon dioxide levels to 350 parts per million by the year 2100, which is what we have formulated with the help of our 21 plus expert witnesses who are leaders in their field, from economics to science to politics, from all over the world. And essentially, the reason we can’t be a little bit more specific about what does a national climate plan look like is because we’re being very deliberate about not infringing on the US’s system of checks and balances and the separation of powers.

So when we go to the legal system, essentially what we are looking for is a mandate where we say the government has committed systemic abuse for decades against its best available science, and we’re now especially reaching a culminating tipping point where we really need a court to step in and say here is the legally enforceable line, here is what you cannot cross. However, it is still entirely up to the legislative authorities, because that is the power that they were given by our founders to decide how they want to get there. And obviously as we all know, there are a bazillion good proposals that could get us there. That could be things like the Green New Deal is the common one talked about right now, we have the carbon fee and dividend, we have cap and trade, we have incentivizing renewable energy, investing in carbon capture technologies, wind and solar, what have you, but that is a legislative avenue.

So what the case really seeks to do is say this is the legal mandate, and now you have the freedom to decide within that mandate what you are going to do. And we’ll even… we pretty much have the, we’ve kind of already collected a lot of experts that you might want to ask, these amazing people that’ve spent their entire careers working on this kind of thing, how might they most effectively and cost effectively get there without damaging the US economy at all, but actually deliberately creating millions of good-paying jobs in the process.

Greg Kaster:

Right, I think everything you’ve just said is so important, because one, in pursuing the lawsuit you’ve amassed… you just must’ve amassed a great deal of information about the history of what scientists have said regarding climate change and the government not following through, as you said earlier. And then also this idea, from what I have read some of the pushback I think maybe even by some of the judges has been, well the courts can’t remedy this, but that’s not in fact what you’re asking. You’re not asking the court to devise a plan and implement a plan, you’re asking that as you say, a line be drawn, and then it’s up to the legislative branch to go from there. There’s been… I don’t know if you call it a setback, but it seems like a setback to me, a recent ruling in the ninth circuit. I think it was a two to one, that sort of put the lawsuit on hold. Can you talk a little bit about that and what the plan is going forward?

Nathan Baring:

Yeah. So yes, the January decision in the ninth circuit was a two to one decision. And so there are basically two ways to look at it. The first way to look at it, and the way that the media kind of unfortunately did hop on quite early, was looking at it as a devastating loss, and big dismissal. So that’s the first way to look at it. The second way to look at it, and actually I would say technically the more legally correct way to look at it, is that the case has not been dismissed. The titles of a lot of articles have been Juliana v. US has been dismissed. The case is not dismissed. The case would have to be dismissed by the district court, and we’re in the ninth circuit. Sorry, yeah. We’re in the ninth circuit court of appeals right now.

And so what’s key is that we have a window where we are seeking, and of course coronavirus kind of threw this all for a loop, but we’re seeking what’s known as en banc review, which is also known as basically a full judge panel. And in this case, because the ninth circuit has something insane like 29 different justices, it would be a panel of 11. But basically, the case would be specifically heard on the things that have been, these legal arguments that have been contested, in front of the entire ninth circuit. And the reason we have a very strong case for en banc, which is usually not a very common route to take, is because we have a two to one decision, and because specifically because the judge that dissented, Justice Stanton from San Francisco, because her dissent was so strong as well we believe that we have a good case for en banc review. And this is before the case gets dismissed.

Because essentially, what happened in January is we had something like seven or eight different key legal questions that had to be answered, or key legal arguments that had to be answered in court, and the court found about seven out of eight of those in our favor. And they got hung up on one of them, but of course in the case, when you’re trying to make a case for legal standing, you have to have every argument in your favor. That’s how it works. But we have thoroughly reviewed the case, and I’ve read the decision a million times I swear. But what we’ve found is that it was a misinterpretation of our argument that led them to that last kind of finding in error as we would see it.

So we think that not only do we have a strong case for en banc, but since the court found… they found that the government has a deliberate history of acting against the interests of future generations based on the best available science, that it is caused by deliberate actions of permitting and subsidizing and furthering an energy system and it’s not just inaction, which is really key, because you can’t sue someone on inaction, the government’s inaction on climate change. You have to sue them on what are they actually doing. So the court found that that was a valid argument. They found that we have standing in that we can show individual personalized harms that the government has caused through climate change. And things like that that are really important in finding standing.

But they got hung up on one element of redressability, which we kind of alluded to earlier. Essentially the idea that the court can’t create this kind of mandate, because it’s out of their authority and [crosstalk 00:21:58] be left to the political branches. But what’s really key here right is that by saying, and this is what Justice Stanton actually said in her dissent, by saying that you should take up your issues with the elected systems, that’s not redress. There is no comfort in that decision. And so Justice Stanton basically said something along the lines of when history looks back upon us today, many will ask why did so many… or basically why did so many do so little, when we already had such a history of knowing that the political branches are not responsive to this kind of thing, and essentially telling people to go to the elected offices, especially since most definitions of young people would include lots of people that don’t have the right to vote yet. But that’s kind of a deliberate indifference.

Greg Kaster:

And Judge, I think her first name might be, is it Josephine? Judge Josephine Stanton? I’ve not read her dissent, but I’ve read about it, and I think it is powerful, as you say. And it sounds like there are grounds to be optimistic with respect to the appeal, and we sure wish you well on that. Let’s change gears a bit and talk about your path, not to the lawsuit, but to Gustavus. How do you come from Alaska to Minnesota? One could argue the climates are similar I guess, I don’t know, winters. But in all seriousness, what was it about Gustavus that attracted you?

Nathan Baring:

It’s funny that you say all seriousness, because that is actually one of the serious reasons that I did come to Minnesota, was because I really actually needed to keep the climates that I have in Alaska. It’s truly in my genetics I think, because my dad’s the same way, my grandpa’s the same way, I really cannot stand the heat at all, and I especially can’t stand the humidity. So coming to Minnesota in the winter is definitely a compromise when you come from Alaska. And then there’s this really funny relationship between Minnesota and Alaska in general that I’ve seen really over the years, and the three schools that I think of most in that case, at least in the liberal arts arena, are Carlton which my dad actually attended, St. Olaf, and Gustavus, and all three of those schools have quite the representation in Fairbanks, which is kind of bizarre when you think about their size and how far away they are. But there’s this kind of funny connection. And it could have something to do with Scandinavian heritage in Alaska as well, that wouldn’t surprise me.

But I came to Gustavus because they had a very strong biology program, and I have friends in Alaska in Fairbanks that graduated from that same biology program. And they gave me a good financial aid package, which I’m sure most people are always going to say that is the most important factor that determines where they go to college in general. And I really wanted to go to a small liberal arts school that had kind of a close, community feel, that presented lots of student activities and showed a lot of history of student governance involvement. And so when I paired all of those factors together, it pointed me to Gustavus, and I have definitely not regretted it.

Greg Kaster:

Well we’re glad you’re here, and I should say growing up in the suburbs of Chicago, I had not… I think I had heard of Olaf, I’m not sure. I had not heard of Gustavus until I applied for the job I currently hold, the position I currently hold. And one of my graduate school advisors mentioned two famous historians, James McPherson probably the most prominent living Civil War historian of our time, and then Sydney Ahlstrom who long taught religious history at Yale, both graduates at Gustavus. And as soon as I heard that I thought, I want to teach there, since I was already a fan of McPherson’s work and had read some of Ahlstrom’s work. And I also learned soon when I arrived just how strong a tradition of science education the school has. And it’s interesting to me, you’re majoring in political science and biology, and you’re involved in this lawsuit. Just sort of thinking about that even just superficially, there seem to be plenty of connections between the lawsuit and what you’re double majoring in. Could you talk a little bit about those connections?

Nathan Baring:

Yeah, so I’ve always been a self-described political geek. I don’t necessarily wear that label proudly, but it’s been forced upon me by my history, which I suppose after people have listened to this interview, that probably is not surprising at this point.

Greg Kaster:

You can wear it proudly. Wear it proudly, I say.

Nathan Baring:

Yeah, exactly. Well, and so especially after high school, when I did an internship with a republican senator in DC from Alaska who I still maintain a very close relationship with, Senator Murkowski, and I hope to actually do another internship with the other republican senator from Alaska, Senator Dan Sullivan in this coming spring, or not spring, summer if I can get that. And those kinds of experiences just kind of added to my interest in political science and how America has managed to continue its exceptionally long history of, at least theoretically democratic governance, and how people have managed to disagree constructively across such deep gaps over its history. And so I kind of came in with that interest.

And then coming from someone who reads a lot of climate science, just almost you could consider it my job since I do so much science communication, I really kind of have to keep up on the best available information. And growing up with a university in my backyard, the University of Alaska Fairbanks where it’s one of the leading biology institutions certainly for the Arctic, and all those things kind of made me realize that I really wanted to have a background in science. And when I say that I want to go to law school, it especially is important in that aspect because I really, really am sick of lawyers and especially politicians kind of deliberately fabricating, or not deliberately fabricating. It doesn’t even really matter, right? But when they make very basic mistakes in scientific understanding or misuse the scientific method, or deliberately leave out parts of papers that are inconvenient for them. And so I really wanted to be someone who could speak with a little bit more authority and respect of the science profession, and these long winded meticulously conceived studies that politicians put in 10-second soundbites. So I really wanted to have that background if I do end up going to law school, or if I do end up getting into local politics.

Greg Kaster:

I think that’s so important. I think yeah, to me, there’s a war on expertise and a war on science, and to some extent that’s always been there in our culture, but it’s more intense than ever, at least in my lifetime I feel thinking as a historian. But I think it’s incredibly important, I know scientists think about this also now, how to communicate to the public the realities of climate change, and also that things can be done about it. It seems to me it’s more a political problem than a scientific problem. And that leads me to another question for you, which is… are you optimistic about whether we’re get a handle on climate change or not, and if so why, and just more in general how do you maintain a sense of optimism in the face of what can seem like such a daunting, daunting challenge? And that is not solving climate change, but just getting people in power, politicians, presidents, to pay attention?

Nathan Baring:

Yeah, well it is definitely challenging at times for obvious reasons. But I also, it’s really important to note that I come from the most oil dependent state in the nation I would say. 90% of Alaska’s general unrestricted discretionary is based on oil taxes and oil royalties, as we’re the only state in the nation without a sales or income tax. And what that leads to is an incredibly netted politics and industry, where the interests of the oil industry very commonly are conflated with the interests of the state, and understandably so. My parents’ salaries are dependent on the oil industry as employees of the state. And so what that’s, that’s done two things for me. Number one, it’s given me a pretty important perspective to come from, in that I recognize how incredibly important a fossil fuel based economy is to many places, whether it’s in Appalachia or whether it’s in Alaska. And this also shows itself in that I have many, many, many friends who don’t even accept the science of climate change, and I mean close friends, friends that I just talked to on Snapchat yesterday, right?

And when you’re talking about someone who is suing the US government on climate change and then has friends who don’t believe in climate change, it keeps me moderated. It keeps me realistic about where the country is at, and that can be both liberating in that I have kind of this perspective to recognize that there are good people who are very family oriented and just simply haven’t been given any alternative to this industry, at least in their view, and also that that presents opportunities to bring them to the table. And I think that there’s a lot of that that’s happened, that’s begun to happen in the last decade, and I think that’s what’s really keeping me positive at this point.

As I mentioned, I interned in Senator Murkowski’s office. She’s known pretty widely now, because she’s very important. She’s one of the most moderate members in general for either side. She’s one of the most moderate members. But what was really important to me about working for her was that she really solicited my ideas on climate change in that office, even though she was a proponent of drilling in ANWR for example, which I am vehemently opposed to. So there’s a time and place for the kind of work that I do in really pushing hard to move the needle where we need to go on taking action on climate change through the court system, then there’s also the important of bringing those potentially left behind, which in my case includes my entire home state if we aren’t careful, with us. So I think that what gives me hope is there’s been a lot of positive, constructive movement toward that in the last decade, even though we’re behind the scenes of the national scene or whatever. But whether it’s that those conversations have begun to happen or that the technologies have changed in a pretty incredible amount of time, and that also gives me some hope.

Greg Kaster:

Well your work and everything you’ve said in our conversation is certainly giving me hope, and I know others as well are proud of you and how you represent not only yourself and the lawsuit, but Gustavus. And I do look forward to seeing you back on campus we all hope in the fall, maybe even in a history class. We’ll see. Thank you so much Nathan, this has just been really interesting for me. I’ve learned a lot, and I wish you well and the other plaintiffs well on the appeal.

Nathan Baring:

Thank you very much, yeah. This has been great.

Greg Kaster:

Take good care, bye-bye.

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Media Contact: Director of Media Relations and Internal Communication JJ Akin
jakin@gustavus.edu
507-933-7510

 

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