18 California children sue EPA over climate change

Eighteen California children are suing the U.S. Environmental Protection Agency for allegedly violating their constitutional rights by allowing pollution from burning fossil fuels to continue despite knowing the harm it poses to kids.

The lawsuit was filed Sunday in U.S. District Court for the Central District of California by Our Children’s Trust, an Oregon-based nonprofit public interest law firm that has filed legal actions over climate change in multiple states. It also names as defendants EPA administrator Michael Regan and the U.S. federal government.

“A lot of times, people talk about the failure of government to act on climate change, but that’s not what this case is about,” said lead attorney Julia Olson, executive director and chief legal counsel for Our Children’s Trust. “This case is about EPA’s affirmative conduct in allowing levels of climate pollution that are causing planetary heating and the increase in wildfires and smoke pollution and heat that’s harming these young people’s health and safety.”

The legal action comes after a Montana judge in August handed down a landmark ruling in favor of 16 youth plaintiffs, also represented by Our Children’s Trust, who said that state agencies were violating their constitutional rights by promoting fossil fuels. The state’s attorney general's office has appealed the ruling. The law firm also has active cases in Hawaii, Utah, Virginia and Montana. It also has another federal case in Oregon.

The most recent lawsuit, which calls climate change “the single greatest driver of the health of every child born today,” alleges that the EPA has intentionally allowed the U.S. to become one of the world’s biggest contributors to the crisis, despite issuing report after report detailing its harms, particularly to children. That includes a report released in 2009, known as an endangerment finding, that stated that global warming posed serious risks and children were most vulnerable to related health harms, according to the complaint.

However, when the agency makes decisions about how much pollution to permit going forward, it conducts economic analyses that have “really explicitly discriminated against children” by assigning their lives less value because they aren’t income earners, Olson said. The agency also applies discount rates to future costs and benefits — a practice adopted in the 1980s during the Reagan administration, she said.

“Those discount rates effectively treat a life in 30 years as less worthy than the value of a life today,” she said.

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EPA spokesperson Shayla Powell said the agency can't comment on pending litigation.

However, she said in a statement that the agency is "moving forward with the urgency that the climate crisis demands" by taking "a host of ambitious regulatory actions to address climate change," including a recently finalized rule that would reduce methane emissions. The agency has also established a National Environmental Youth Advisory Council, which Powell described as the first federal advisory committee composed exclusively of young people and dedicated to the environment.

"EPA appreciates that young people are sounding the alarm on climate change," she said.

The plaintiffs, who range in age from 8 to 17, have lost homes in wildfires, suffered health problems from breathing polluted air, missed weeks of education due to climate change-related school closures and been forced to ration tap water due to unprecedented droughts, according to the complaint.

The lawsuit alleges that the EPA’s conduct violates the childrens' 5th Amendment right to equal protection of the law, as well as their fundamental right to life, which includes the ability to pursue happiness, longevity and personal security, Olson said.

“They will tell you their ability to pursue happiness is really being degraded by the new smoke seasons and the fire risk and the heat and the harm that they’re seeing,” she said.

For instance, the lead plaintiff, Genesis B., 17, of Long Beach, lives in a home without air conditioning because her family can’t afford it, according to the lawsuit. (The plaintiffs were not fully identified in the suit because they are minors.)

The property was designed for the moderate temperatures once typical of coastal Southern California. But as extreme heat has become more common, the teen must oftentimes wait until evening to do her homework, when temperatures cool down enough for her to be able to focus. She must also keep her windows open in the summer, exposing her to pollen that worsens her allergies and ash from wildfires that have grown increasingly close to her community, according to the complaint.

Although she’s tried to lessen her contribution to global warming by adopting a vegan lifestyle, Genesis is constantly worrying about how the climate crisis will affect her future instead of thinking about college, the complaint states.

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Another plaintiff, Ione W., 12, of Sebastopol, lost her home and all her possessions in the 2017 Tubbs fire when she was 5 years old, according to the lawsuit. She and her family escaped on a bridge that burned down behind them. Since then, she’s had to evacuate twice more to escape fires and once to avoid prolonged wildfire smoke exposure, according to the lawsuit.

Ione now suffers extreme anxiety. At 7, she would photograph the sunset each night and compare the image to previous sunsets, looking for hints of orange that could indicate a wildfire, according to the complaint. The smell of smoke brings on extreme headaches that makes it difficult for her to participate in school. And each year from September through the first heavy rain, she doesn't feel safe, even in her own home, according to the lawsuit.

The lawsuit seeks to define children such as Genesis and Ione as a class that is uniquely harmed by the climate crisis in ways different from, and worse than, adults. Their bodies and minds are still growing, enabling the effects of climate change to imprint themselves on their development, Olson said. Yet they are dependent on caregivers and can’t meaningfully participate in the policy decisions that have allowed the crisis to grow unchecked, making them all the more vulnerable, she said.

“By the time they can vote, Plaintiffs have experienced 18 years of climate injuries that they carry for the rest of their lives,” the lawsuit states.

Because the government is engaging in conduct that harms children as a class of people, courts should weigh under a heightened level of review whether the EPA’s conduct is placing a lifelong burden on children and harming their health and safety, especially compared to adults, Olson said.

“This would be the first case to really ask the court to be clear about that in its jurisprudence — not just be a one-off case that addresses it but really set the test for how the government needs to consider children when it’s engaging in programs and making laws that have a significant effect on kids,” she said.

Read more: Has California addressed the failures that led to the deadly Camp fire five years ago?

The lawsuit further alleges that the EPA is acting outside the scope of authority delegated to it by Congress — something the U.S. Supreme Court has increasingly been looking at in recent years in the context of West Virginia vs. EPA, Olson said. That ruling, handed down in 2022, restricted the agency’s authority to adopt broad regulations to combat climate-changing pollution, saying Congress did not give environmental regulators such authority.

“Our claim is that Congress has never given EPA the authority to authorize and permit and allow the life-threatening levels of pollution that it continues to allow and has allowed for decades,” Olson said. “Instead, Congress set up EPA to control pollution and manage air quality in a way that would protect human health and safety.”

The plaintiffs are seeking a declaratory judgment that they are members of a constitutionally protected class, that they’re entitled to a heightened level of judicial review over the EPA’s conduct and that their constitutional rights have been violated. They hope to get to trial quickly so they can put forward evidence to prove their claims, Olson said.

“We want the court to say, ‘Yes, children deserve special protection and yes, these young people are being discriminated against by EPA’s conduct and EPA is violating their rights to life and is acting outside of its delegated authority in allowing all of this pollution,’” she said.

“And once the court has said that, then we fully expect that EPA will change its conduct and start complying with the U.S. Constitution and the court order and if it doesn’t, then there are further remedies that we could seek at that point.”

This story originally appeared in Los Angeles Times.