Virginia judge dismisses youth climate change lawsuit

A Virginia judge has dismissed a lawsuit filed on behalf of 13 young people who claim that the state’s permitting of fossil fuel projects is exacerbating climate change

ByDENISE LAVOIE AP Legal Affairs Writer
September 16, 2022, 5:37 PM

RICHMOND, Va. -- A Virginia judge on Friday dismissed a lawsuit filed on behalf of 13 young people who claim that the state's permitting of fossil fuel projects is exacerbating climate change and violating their constitutional rights.

The lawsuit filed by Our Children's Trust, an Oregon-based nonprofit public interest law firm, asked the court to declare portions of the Virginia Gas and Oil Act unconstitutional. It also seeks to find the state's reliance on and promotion of fossil fuels violates the rights of the plaintiffs, who range in age from 10 to 19.

But Richmond Circuit Court Judge Clarence Jenkins Jr. granted the state's request to dismiss the lawsuit, finding that the complaint is barred by sovereign immunity. That's a legal doctrine that says a state cannot be sued without its consent. The state argued that sovereign immunity prohibited the plaintiffs’ claims because they sought to restrain the state from issuing permits for fossil fuel infrastructure and to interfere with governmental functions. The judge did not rule on the merits of the plaintiffs' constitutional claims.

The lawsuit is one of five filed by Our Children’s Trust in states around the country. Lawsuits in Hawaii and Utah are in the early stages, while a lawsuit it Montana is expected to go to trial next year. A federal lawsuit filed in Oregon in 2015 remains in litigation after the 9th U.S. Circuit Court of Appeals ruled against the plaintiffs last year. They have since asked to file a more narrow amended complaint and are awaiting a decision.

Jenkins ruled from the bench and dismissed the lawsuit with prejudice, meaning it cannot be refiled again in the same court. Their attorney, Nathan Bellinger, said they will promptly appeal the ruling to the state Court of Appeals.

Ten of the plaintiffs — accompanied by their parents — listened in court as Bellinger said the state is knowingly contributing to the climate crisis by continuing to rely on fossil fuels as its main energy sources and polluting the atmosphere with greenhouse gas emissions. He asked the judge to allow the case to proceed to trial.

The lawsuit alleges that climate change has contributed to health problems experienced by the plaintiffs, including asthma and heat exhaustion. Four of the plaintiffs have become ill after being bitten by ticks, a population that has increased due to climate change, Bellinger said.

It also claims that Virginia has violated the public trust doctrine, which says that the state has a duty to hold certain natural resources in trust.

“These courageous Virginia youths ... are turning to the judiciary to protect their fundamental rights,” Bellinger argued in court.

Bellinger said the Virginia lawsuit is the first to leave out a request for an injunction to require the state to take certain actions or to submit a remedial plan. Instead, it asked only for a declaration that the continued permitting of fossil fuel projects violated the plaintiffs' rights.

But attorneys for the state argued that the plaintiffs are attempting to usurp the role of the state legislature and impose their preferred energy and environmental policies on the state.

“Simply put, this action belongs two blocks over at the General Assembly and not before this court,” said Assistant Attorney General Thomas Sanford.

After the court hearing, several of the plaintiffs spoke during a news conference where they held a large banner proclaiming, “Climate Justice in our Courts NOW!”

An 18-year-old identified in the lawsuit as “Layla H.” said she has experienced everything from heat exhaustion to flooding due to climate change. The lawsuit says “an extreme precipitation event” in 2018 flooded the basement of her family's home, causing water damage and mold growth that cost approximately $17,000 to remediate.

She said she's tired of inaction on the part of state leaders.

“Every alarm bell has been rung, and yet, nothing,” she said. “We will not wait any longer to do what must be done.”

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