No standing before the law: Why parties should stop referencing future generations’ rights in environmental litigation

Intergenerational justice is a useful concept when broadly applied to policy-making, but harmful when evoked by parties for consideration by the judiciary branch.

Do future generations have enforceable rights? 

At a glance, the answer might seem obvious; we would presume our children and grandchildren to have at least the same rights we do as human beings, no matter when they come to live. However, in practice, the precise legal standing of “future generations” in court has wide-ranging implications, especially when it comes to cases where the “rights” of some future individual or group are pitched against the rights of those currently living. 

First comprehensively outlined in the historic 1987 Brundtland Report, “intergenerational justice” refers to “the ability of future generations to meet their own needs,” which cannot be compromised for the sake of current development [1]. It is intrinsically tied to the concept of sustainable development and often invoked in cases of environmental litigation and public trust, where natural resource allocation is deemed to be “unsustainable” for ensuring the welfare of future generations. 

To better understand the concept, consider this hypothetical scenario: in October 2021, Johnny, a Harvard student, greatly desires some Veritaffles. Imagine Harvard’s Constitution says that for the duration of this institution’s existence, whoever desires Veritaffles has the right to a standard of Veritaffles adequate for the health and wellbeing of himself. However, a new policy determines that given the current shortage, Johnny shall not have a Veritaffle every day as it would most likely preclude Johnny MMXXX from enjoying Veritaffles at all. 

This decree is logical, given every institution’s obligation to consider its wellness in the long term and the values it leaves for posterity, in accordance with its constitution. Broadly speaking, for every country’s legislative branch, applying serious consideration of future benefits and damage is quintessential to sound policymaking. In fact, legislating for the defense, welfare, and liberty of “our Posterity” is enshrined in the United States Constitution’s preamble as a goal of the Constitution and the Union itself, mandating the legislature to think long-term rather than short.

One example of how Congress has recently applied this principle is via the “Social Cost of Carbon,” a method whereby future costs of climate change are “discounted” per a determined annual interest rate to compare with the current cost of a carbon-cutting policy and determine policy effectiveness [2]. In principle, if the cost for future generations is higher than the cost of policy enactment in the present, then the policy should be implemented to ensure the welfare of Posterity. 

From a rights-based perspective, however, how should a judge rule between the rights of present Johnny and an intangible future Johnny MMXXX? If a plaintiff sues the government over undue burdens caused by a policy on himself and his enterprise, can the government evoke the rights of future generations in defense of its policy? 

The answer is a resounding no. From a legal perspective, generations not yet alive have no legal standing, not being born “persons” entitled to the judiciary’s protection in any country via self-executing rights. The U.S. excludes the unborn from constitutional rights, per the precedent established in United States v. Vuitch (1971) and soundly reaffirmed in Roe v. Wade (1973). Writing for the majority, Justice Henry Blackmun stated in the historical Roe v. Wade ruling that “the word 'person,' as used in the Fourteenth Amendment, does not include the unborn,” further adding that no legal system has ever recognized the rights of the unborn as they do living persons [3].  The United Nations Declaration of Human Rights, as well as all key international human rights treatises, only extend the definition of human rights to those living [4]. Constitutional protection, therefore, does not extend to them. 

Furthermore, in the U.S., when “generations unborn” are on the plaintiff's side, they do not meet any of the three quintessential requirements for standing outlined in Lujan v. Defenders of Wildlife (1992). This precedent states that for a case to be justifiable in court, the plaintiff has to establish that: (1) they have “suffered an injury-in-fact;” (2) “there must be a causal connection between the injury and the conduct” and (3) “it must be likely… that the injury will be redressed by a favorable decision” [5]. Clearly, being unborn, future generations have not yet suffered an “injury-in-fact,” and thus have no grounds to establish a causal connection between the conduct and said “injury” or call for redress. 

Yet many climate litigators have recently claimed to represent “future generations” in their suit for environmental justice, conflating the language of intergenerational considerations in policy with that of entitled rights for persons under the law. The (living) lead plaintiff in Juliana v. United States (2020), for example, lists “future generations” in their list of co-plaintiffs represented by climate scientist Dr. James Hansen [6]. This is the most famous and widely-reported case but by no means the only one. Although they don’t directly list “future generations” in their list of plaintiffs, Sinook v. Alaska (2018) and Clean Air Council v. United States (2019) also apply a similar strategy in referencing the rights of “plaintiffs and future generations” multiple times throughout their complaint [7].

In doing so, they are playing with fire. Though none of these cases have reached the highest branches of the judiciary, if the Supreme Court were to rule favorably on intergenerational justice, this could open the door for a slippery slope that would permanently alter the definition of personhood in the eyes of the law. A consequence of this could be justices placing the rights of the unborn child over, or at least on the same level as the right of its living mother. Indeed, it is hard to conceive of a legal, or for that matter, a logical framework, that recognizes future generations’ right to a healthy environment while denying an unborn person’s right to life.

At the end of the day, there is no need for environmental litigators to invoke unborn persons’ rights in their lawsuits. In most cases, they already have an abundance of evidence showing that environmental and climate damages are already happening in the present to themselves and their living peers [8]. They might do well to focus on establishing sound scientific linkages between fossil fuel extraction and present, concrete damages to meet the standing test, rather than using the language of intergenerational justice. Doing the latter not only fails to strengthen their case but could enable a conservative court to directly weigh the rights of persons unborn with persons living — with far-reaching and unforeseen consequences. 

References

[1] “Report of the World Commission on Environment and Development: Our Common Future” (World Commission on Environment and Development ), accessed October 24, 2021, https://sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf.

[2] DJ Torgerson and J Raftery, “Economic Notes. Discounting,” BMJ (Clinical research ed.) (British Medical Journal, October 2, 1999), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1116731/; “Social Cost of Greenhouse Gases: Issues for Congress,” accessed October 24, 2021, https://crsreports.congress.gov/product/pdf/IF/IF11844.

[3] "Roe v. Wade." Oyez, www.oyez.org/cases/1971/70-18. Accessed 24 Oct. 2021.

[4] “Universal Declaration of Human Rights,” United Nations (United Nations, 1948), https://www.un.org/en/about-us/universal-declaration-of-human-rights; Rhonda Copelon et al., “Human Rights Begin at Birth: International Law and the Claim of Fetal Rights,” Reproductive Health Matters 13, no. 26 (2005): pp. 120-129, https://doi.org/10.1016/s0968-8080(05)26218-3.

[5] "Lujan v. Defenders of Wildlife." Oyez. Accessed October 24, 2021. https://www.oyez.org/cases/1991/90-1424.

[6] “Juliana v. United States.” Climate Change Litigation Databases. Accessed October 24, 2021. http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2015/20150812_docket-615-cv-1517_complaint-2.pdf

[7] “Sinook v. Alaska.” Climate Change Litigation Databases. Accessed October 24, 2021. http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2017/20171027_docket-3AN-17-09910_complaint.pdf; “Clean Air Council v. United States.” Climate Change Litigation Databases. Accessed October 24, 2021.http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/case-documents/2017/20171106_docket-217-cv-04977_complaint.pdf

[8] IPCC, 2021: Summary for Policymakers. In: Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change [Masson- Delmotte, V., P. Zhai, A. Pirani, S.L. Connors, C. Péan, S. Berger, N. Caud, Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K. Leitzell, E. Lonnoy, J.B.R. Matthews, T.K. Maycock, T. Waterfield, O. Yelekçi, R. Yu, and B. Zhou (eds.)]. Cambridge University Press. In Press.