Category Archives: Youth V Gov

Montana Youth Score Major “W” for our Climate with Judge’s Historic Ruling!

“The plaintiffs ‘have a fundamental constitutional right to a clean and healthful environment, which includes climate as part of the environmental life-support system.'”
Montana District Court Judge Kathy Seeley’s in Held v. Montana, August 14th, 2023

Held v. Montana plaintiffs

Once again, it is young people that are leading our country and civilization towards our sustainable energy future and away from its fossil fuel polluting past. The news this week and what kids and young adults in Montana have just accomplished is a very big deal indeed. Please join me in congratulating the 16 young people ages 5 to 22 that just won their historic, truly groundbreaking case (Held v. Montana) when Montana Circuit Court Judge Kathy Seeley ruled that her state’s agencies were violating their state established constitutional right to a clean and healthy environment by allowing fossil fuel development. The Judge’s ruling is the first of its kind in the United States of America.

The ruling followed a two week-long trial in response to a lawsuit that the children filed in March, 2020 that simply demanded that the state’s government follow its own constitutional wording by protecting its citizens from the causes of our climate change crisis. Their case asserted that, by supporting a fossil fuel-driven energy system that is contributing to our climate crisis, the State of Montana is violating the youth’s constitutional rights to a clean and healthy environment; to seek safety, health, and happiness; and to individual dignity and equal protection under the state law while also having argued that the state’s fossil fuel energy based system is degrading and depleting the state’s constitutionally protected public trust resources including the atmosphere, rivers, and lakes, as well as fish and wildlife.

In addition to the incredible news of the Judge’s favorable ruling itself is the fact that the trial introduced public testimony related to the impact our climate crisis has been having on the youth plaintiffs along with powerful, factual science and expert testimony on how the state’s policies are contributing to increasing carbon dioxide emissions that are, in turn, causing hotter temperatures, drought, wildfires, and decreased snowpack among other detriments to Montana’s environment. Not only will the experts’ testimony and factual data that was presented help guide Montana to a more sustainable future but many of those facts can now be used in other cases around the United States. The Court’s 103 page Findings of Fact, Conclusions of Law and Order includes 84 pages of Findings of Fact, a virtual treasure trove of policy and scientific facts that support the damage that Montana’s government’s policies have been allowing and that must now be corrected.

As just one random example of the type of facts included in the ruling you will find this one, number 262, that explains that while the state authorizes four coal power plants generating 30% of the state’s power, the state has historically done this without consideration of how green house gas emissions pollute and change our climate despite Montana’s Constitution making it clear that the state should have been considering such things and that it has had an (unfulfilled) obligation to protect people’s rights including the right to a clean atmosphere. Here’s the 262nd Finding of Fact (you can read the entire document by clicking here):

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As we celebrate this ruling allow me to share an article that the University of Miami published a few days ago about the Montana case that offers perspective from a diverse group of thought leaders from our campuses, including some of my own thoughts. What I love about the following article is that it not only features many of my heroes, passionate professors that I am privileged to study with both at our School of Law (where I am about to start my third and final year and the Rosenstiel School of Marine, Atmospheric, and Earth Science (where I am about to start my second year of Ph.D. studies), but that it illustrates the breadth of expertise that the University of Miami has focused on and devoted to the most important issue my generation will ever face: our climate crisis.

Score one for youth on climate ruling

Sixteen young people, ranging in age from 5 to 22, prevailed in a first-of-its-kind climate change trial in Montana. University of Miami experts weigh in on what the verdict means and on the ripple effects it could have.


In this photo, gas emissions rise from a coal-burning power plant in Colstrip, Montana, in 2013. Photo: The Associated Press

By Robert C. Jones Jr.

Tears streamed down Delaney Reynolds’ cheeks.

It was late afternoon Monday, and the University of Miami graduate student had taken a break from kayaking in the lower Florida Keys to read an email news alert that had come over her cellphone.

In a landmark decision, a Montana state court sided with a group of 16 young environmental activists, ruling that the state violated their constitutional right to a “clean and healthful environment” by allowing fossil fuel projects without considering the effects on climate.

Reynolds paused, took a deep breath, and cried out in joy, “Finally.”

Three years ago, it could very well have been her celebrating a youth-led climate victory on the steps of a courthouse. But the lawsuit she and seven other young people filed in 2018 in Leon County Circuit Court, asserting that Florida, in causing climate change, threatened their right to a livable future, was dismissed by a circuit judge in 2020.

Never one to give up, Reynolds, described as everything from an eco-warrior to “an incredibly valuable force of nature,” continued her fight against climate change, speaking to environmental groups around the nation.

She has given a TEDx Talk, addressed the United Nations General Assembly, appeared with actor Jack Black on the National Geographic Channel’s “Years of Living Dangerously,” and founded the NGO the Sink or Swim Project.

Monday’s ruling in a courtroom more than 2,000 miles away in Helena, Montana, gives her hope that climate change can be conquered, and the Earth saved.

“It is indisputable that our local, state, and federal governments can and do influence energy policy and that the current laws and rules that are in place overtly support the use of the very fossil fuels that are destroying our atmosphere and oceans,” Reynolds said. “Until young people force change, as has happened in Montana, this antiquated system will not change. The good news is that young people all over our country and planet understand that fossil fuels are killing Earth’s environment; that this must stop during our lifetimes; that each of us logically have a constitutional right to a clean, healthy, atmosphere; and that we will use every avenue possible to force the change that is needed before it’s too late.”

Our Children’s Trust, the Oregon-based nonprofit public interest law firm that brought Reynolds v. Florida, also brought the Montana case on behalf of the 16 young clients who range in age from 5 to 22.

“I certainly know firsthand the hard work, ridicule, and profound sacrifices the youth in Montana have had to endure for years to see this case go to trial, the same has happened here to my friends and I in Florida a few years ago,” Reynolds pointed out. “But I also know countless young people that are dedicating their lives to solving this problem. And, within the story of one’s time here on Earth, what could be more important than solving our climate crisis? The science is clearly on our side. And increasingly the courts are on our side.”

The Montana ruling, which comes as heat waves continue to envelope the nation and as wildfires rage in the West, means that the state must now consider climate change in its approval or renewal of fossil fuel projects.

“This ruling is a huge victory for climate activists,” said Jessica Owley, an environmental law expert at the University of Miami School of Law, who went on to explain the Montana decision in detail. “It is based on Montana’s state constitution, which contains an affirmative right to a healthy environment. Outside of the United States, such provisions in national constitutions have provided an avenue to alleviate environmental harms. However, legal experts have long wondered whether such provisions have any meaning inside the United States. Our U.S. Constitution has no such right, but a few states do, including Montana, Hawaii, Pennsylvania, and New York.

“This case,” Owley continued, “demonstrates that these provisions can have substantive meaning. Because the state of Montana recognizes a right to a healthy environment, it was unconstitutional for a state statute to prohibit consideration of climate impacts during required environmental review processes.”

Held v. Montana, as the case is officially known, may inspire more states to add such provisions to their constitutions, Owley said.

“A massive win for the climate movement” is how Abigail Fleming—associate director of the School of Law’s Environmental Justice Clinic, which has worked with Our Children’s Trust—describes the Montana case. “The court created an extraordinary evidentiary record that shows the detrimental impacts of the climate crisis. More importantly, [the ruling] highlights that there are alternatives and that there can be a shift in the economy. It shows that enforcing a right to a safe and healthy climate is possible.”

Geoffrey Supran, associate professor of environmental science and policy at the Rosenstiel School of Marine, Atmospheric, and Earth Science, who investigates climate change disinformation and propaganda by fossil fuel interests, said “climate lawsuits have been banging at the door of governments and oil companies for several years now. This ruling blows the door wide open. It’s a major milestone in climate litigation and the fight for climate accountability and justice.”

Montana Attorney General Austin Knudsen’s office is planning to appeal the ruling. But even if the case is overturned, “the favorable district court opinion is highly significant in itself,” said Daniel Suman, a professor of environmental science and policy at the Rosenstiel School, who holds an adjunct appointment in the School of Law.

“Judge Seeley’s long opinion gives credence to climate change science and has certainly elevated the threats of climate change and the absence of government action in the public eye,” he said. “Her ruling will also encourage further litigation against greenhouse gas emitting industries and governments that fail to act to address these threats.”

The rise in such lawsuits has already begun, Owley pointed out. Our Children’s Trust, for example, has taken legal action on behalf of young people in all 50 states. The firm also has cases pending in four other states.

“And there are youth-led climate cases gaining traction across the globe,” Owley said. “A notable aspect of this case in Montana is that the court found that the youth plaintiffs had standing. This is the first climate case like this to make it to trial. Usually, they are dismissed for lack of standing or other threshold issues. ‘Standing’ asks whether the people before the court are qualified as plaintiffs, meaning that they must demonstrate that they will suffer an actual injury caused by the defendant’s actions,” she added. “Here, the youth plaintiffs were able to present stories of battling asthma, dealing with heat and fires, and other concrete harms. The court recognized that all carbon emissions contribute to these harms and any reduction possible will help alleviate the harm.”

A political system that has failed to respond to the climate crisis in a way that mitigates environmental damage is one of the primary reasons for the uptick in such lawsuits, said Douglas Ruley, the newly appointed director of the School of Law’s Environmental Justice Clinic, who has three decades of experience in environmental law and litigation.

“For all the good things that have occurred, carbon pollution is still increasing across the world,” he said. “So, folks are doing what they can to try to wake the system up. And maybe in some respect, this [Montana] decision can play a role in that.”

Ruley read much of the 103-page Held v. Montana ruling, becoming particularly struck by the fact that more than 80 of the pages are findings of fact in which the judge found the plaintiffs’ expert witnesses to be credible. “The court basically goes through the science of the climate crisis, its general effects, and its specific effects on Montanans,” explained Ruley. “The plaintiffs really marshaled a solid, factual case that was persuasive to the judge. And in response, the state didn’t have a whole lot to say.”

Is the historic verdict a wake-up call for the fossil fuel industry? “I wish it were,” Ruley said. “But judging from the last 30 years, I have very little hope that it will be. I would expect the industry to continue with the strategy that it’s had of denial and avoidance and creating confusion where possible and using its vast financial resources to influence politicians to keep on ignoring the problem as long as possible.

“There are positive things happening, though,” Ruley added. “The Inflation Reduction Act and the investments that are flowing from that will accelerate the transition toward a cleaner energy system and a less polluting economy. But here, again, as big a step as that was, a lot more needs to be done.”

Allow me to end this post by again congratulating the young people in Montana who were the plaintiffs in this case. From my own such case here in Florida a few years ago, I know first-hand how hard it is to fight the powerful adult leaders that are in charge today and who are focused on profits over pollution, the sacrifices one must make by participating in such a case, and the ridicule you face over years of your young life when you are simply trying to make things better for future generations. I am in awe of you and so very thankful.

Allow me to also congratulate the truly amazing team at Our Children’s Trust for their hard work, dedication, and passion in representing young people in the fight of our lives. Each of you should be proud of this news and while the fight is far from over you have taken an incredible step towards solving the climate crisis. Bravo to each of you. You are, without a doubt, heroes in the front line of this fight. (You can learn more about Our Children’s Trust, this case, and others by clicking here).

It is without a doubt shameful that we are forced to fight so hard, and from such a young age, against such powerful interests but I assure you that young people all over the world are up for the challenge. That I know for sure. And the Montana ruling makes clear, once again, that young people and our passion on this topic cannot be diminished. It is indisputable that morality and the science are on our side. We know that solving our climate crisis is the most important challenge that our generation will face during our time on earth and that we must solve it by shifting society from a fossil fuel-based economy to a sustainable one. For those businesses, leaders, products, and, yes, governments that are allowing the damage to continue, the Montana case sends you a loud message that young people will not sit idly by and allow you to perpetuate the damage.

August 9th, 2022: A Historic Day For Florida’s Environment


I am pleased to share that earlier today the Florida Department of Agriculture and Consumer Services’ (FDACS) renewable energy rule, Chapter 5O-5: Renewable Energy, became effective. This new rule is perhaps the most significant climate policy ever established in Florida history and allows our state to take major steps towards a sustainable future without carbon pollution. The rule sets the following renewable energy goals for Florida’s electric utilities:

  • At least 40% by 2030,
  • 63% by 2035,
  • 82% by 2040, and
  • 100% by 2050.

These goals and the accompanying requirements were officially proposed in April 2022 by FDACS Commissioner Nikki Fried in response to a petition for rulemaking that three friends of mine and I filed in January 2022. The petition for rulemaking called on FDACS to require each electric utility that produces or purchases electricity for consumption in the State of Florida” to set and achieve goals to generate 100% of Florida’s electricity from renewable energy by 2050.” It remains amazing that four young people, two of which can’t yet even vote, had to force the State into enacting these rules, but I am deeply proud of the outcome and all Floridians should be too.

And speaking of pride, allow me to send a shout out to my amazing co-petitioners and long time friends: Valholly, Isaac, and Levi who have been with me, and I with them, every step of the way since 2018 when we sued Governor Rick Scott and more recently Governor DeSantis, as well as more recently pursued the FDACS petition that led to today’s rule. Also allow me to give a very special shout out to the hundreds of Florida youth all over our state that signed on to our petition and had their voices about Florida’s energy future heard loud and clear. To each of you please know that I am SO very proud of you and that you should be proud of the important role you played in helping us make this happen in Florida.

Here’s what my friend and our Senior Litigation Attorney from Our Children’s Trust, Andrea Rogers, had to say about the new rule and today’s news:

“This rule – the strongest climate policy enacted in Florida in over a decade – was only made possible because youth in Florida demanded climate action. Over 200 young Floridians signed the petition for rulemaking to set significant and achievable renewable energy goals, holding their government accountable for its contributions to the climate crisis and demanding meaningful action. Today, thanks to their determined efforts, present and future generations of Floridians are headed toward a safer, more sustainable energy future.”


Andrea’s firm, Our Children’s Trust, and their team deserves tremendous credit for all of their hard work on helping me get this new rule established. Andrea, Mitch, Guy, David, Paul, and the rest of their team also represented and supported me and my three other lead youth petitioners in Reynolds v. State of Florida in 2018. Our Children’s Trust is doing amazing work as evidenced by today’s rule here in Florida, as well as cases all over our planet including Navahine F. v. Hawai’i Department of Transportation, Held v. State of Montana (which, when it proceeds to trial in 2023, will be the first ever children’s climate trial in U.S. history) and, of course, their representation of 21 youth plaintiffs in the landmark federal constitutional climate lawsuit Juliana v. United States, who are awaiting a decision in their case that could also set the stage for trial in 2023 (and whose story can be found on the Netflix documentary Youth v Gov).

Photo 4-21-22, 11 03 33 AM

Allow me to also sincerely thank Commissioner Fried and her staff including Stephen Sharpe and Shelby Scarpa for their support. Although the framework for today’s rule was established in 2006, it saddens me that for nearly two decades our State’s adult leaders did nothing to actually implement the required rules and that it took a few passionate youth to make the state take action that led to today’s rule, but we are grateful that each of you listened to our concerns. Future Floridians will be forever grateful to you for supporting us.

Our climate fight leaves little time to breathe sighs of relief but today’s news should allow us to all take a deep breath and consider a Florida where everyone can breathe clean air by 2050 as our energy system shifts to sustainable power as a result of today’s new rule. We have much more to do if we are to solve our climate crisis but today’s step here in the Sunshine State places Florida at the forefront of solutions here in the United States and around the world. Congratulations Florida and thank you for allowing me to play a small role in making Florida climate legislation history.

“Politics” & 8 Gutsy Kids

An Update on Florida’s Historic Youth Climate Lawsuit Reynolds v. State of Florida

South Florida and many other places all around this unique, fragile peninsula that is the State of Florida are at dire risk to becoming lost, of becoming extinct and inaccessible, as a result of man-made climate change and its resulting sea rise. Local municipalities are increasingly, openly now acknowledging this reality and their own limitations to save a growing portion of their communities by using words such as “retreat” to describe the reality of our future unless we move quickly to stop the fossil fuel use that’s at the heart of climate change. In fact, local cities, towns and counties all over Florida have begun to publicly discuss that they are fighting a losing battle without help from the State of Florida, America and the world beyond.

And yet, State leaders such as Governor DeSantis, Agriculture Commissioner Fried, CFO Patronis, Attorney General Moody do nothing more than play politics in a process that spins around and around without change while protecting the polluters that are causing and perpetuating the damage. Make no mistake, for generations Florida’s elected officials have been played by industries intent on protecting their profits and in the process use and sell fossil fuels that are the core cause of the problem and until this changes, the damage will only grow worse by the day until the day comes that millions can’t get to their homes, businesses or special places all around us because no one in power truly cared to demand change.

And so as to remove the very politics that are the problem, seven young “gutsy”, as my friend Dick Jacob’s likes to call us, friends of mine and I have done something ridiculous and remarkable by suing the State of Florida and its elected Cabinet.

Ridiculous because we can surely agree that children and young adults should not feel forced to fight so hard for their future and that of future generations by having to file a lawsuit against the very state they live in to demand that their government enforce laws designed to protect them and their environment.

Remarkable because generations of adults before us, much less too many in positions of power today, gladly extend their hands out to the polluters, their lobbyists and the money so as to play THE key role in perpetuating the problem. I mean how else can you explain someone, anyone, supporting the use of something so filthy, that smells so bad and that is so lethal to any living creature as petroleum rather than cry out for a better energy solution in a world that’s now filled with better energy solutions, unless it were greed and politics?

And yet, what does a Judge appointed by one of the all-time climate deniers ever, former governor/now US Senator Rick Scott, conclude when the state not surprisingly asks him to deny our lawsuit?

He suggests we need a political solution.

Of course the abate failure of Florida’s political system, its elected politicians corrupted by political donations and the army of fossil fuel energy and utility industry political lobbyists feverishly working to protect their clients are a large part of the reason why such a fragile place as Florida has such a dire problem. And yet that’s what Judge Carroll suggested we need. More of the same political B.S. that has caused the problem.

Needless to say my friends and I do not agree with the Judge’s view, nor will we allow it to slow our desire to fix the problem. When I first thought to pursue a solution through the court system I knew that the process would be a long one filled with many challenges but I also knew that the stakes were too important to not seek the learned help of our judiciary. I knew that I likely faced years, perhaps decades, of my life pursing a legal remedy, the changes that we need, and thus I remain as dedicated to the cause, perhaps more so, than ever before despite Judge Carroll’s opinion.

With that in mind, I’d like to give you an update on our recent Hearing and next steps; first in a brief video of my own thoughts followed by a guest blog from my friend Dick Jacobs, a Florida lawyer for more than 50 years who will eloquently detail why he feels that the Judge is wrong to think that this is a political issue (it’s not). I’ve ended the post with a video in which many of my co-plaintiff’s share their views and a few thought provoking questions I hope you will consider.


After a three-hour “Zoom” video-conference hearing, Judge Carroll said his decision was based on the fact that the kids were asking the court to solve our climate crisis, which is the responsibility of the legislature and the executive branch. Carroll said “This is not a matter for the court. I regret to have to tell you this. I don’t want anyone to thing I am diminishing what [the kids] concerns are. I think they’re legitimate.” The judge said he would write his ruling so that it is ripe for appeal. He wished the children luck.

The legal technicality underlying the Judge’s opinion is known as the “Political Question Doctrine,” which Black’s Law Dictionary defines as “A question that a court will not consider because it involves the exercise of discretionary power by the executive or legislative branch of government.”

Debates as to what the Constitution means, and whether or not there are “political questions,” are not something new. The debates have been around since the days of the Founders. Perhaps the most famous early controversy about the Court’s authority was between John Marshall, appointed as Chief Justice in 1801 by John Adams just before he left office, and our third President Thomas Jefferson (1801-1809). In the 1803 case of Marbury v. Madison, Marshall’s Court opined that the Supreme Court had the right to decide if federal or state laws violated the Constitution. Marbury and subsequent Marshall decisions (his Court decided more than 1,000 cases in his 35 years, with Marshall writing half of the opinions) firmly established the idea that the Federal judiciary system was independent and co-equal in responsibility to the executive and legislative branches. Jefferson disagreed with Marbury and the role of the Court, seeing it as less consequential. Jefferson’s idea was that the Court’s authority to overturn laws conflicted with the peoples’ right to rule. (Jefferson, however, was not faced with the politics of today’s Democracy of Dollars, where the influence of lobbyists, not the people, prevails.)

Over the years the debate about the role of the Supreme Court has continued. Archibald Cox wrote in 1967, in his The Warren Court (the Court when I was in law school, 1964-67):

What role should the judicial branch play in the government of American people? Should the court play an active, creative role in shaping our destiny, equal with the executive and legislative branches? Or should it be characterized by self-restraint, deferring to the legislative branch whenever there is room for policy judgment and leaving new departures to the initiative of others? Under Marshall the court staked an active role in government, building up the power of the federal judiciary in shaping the relationship between the nation and the states according to Marshall’s nationalism. … [In reaction to judicial activism], there developed the theory of judicial self-restraint with which the senior generation of lawyers was generally indoctrinated. The theory sprang from the soil of the old Jeffersonian philosophy…: ‘You must seek correction through the political process, for the judiciary to intervene would be a denial of self-government.’”

As Cox points out, when it comes to fundamental Constitutional, human rights, judicial restraint is too frequently a “no answer,” for the restraint “closes the political process to particular ideas or particular groups, or otherwise distorts its operation. Then the correction must come from outside and no violence is done to the principle of representative government if the court supplies the remedy.”

“Ideally, the federal judicial branch ought not to enlarge its own jurisdiction simply because Congress and the state governments failed to solve the problem confided in them….The ideal remedy is to reform the delinquents. But government is more pragmatic than ideal. In a practical world there is, and I suspect has to be, a good deal of play in the joints. If one arm of government cannot or will not solve an insistent problem, the pressure falls on another.”


• Our Constitutional right to “privacy,” always important, but more important in this age of electronic intrusions, was found by the Warren Court in the “penumbra” of rights surrounding the Constitution, not in the Constitution itself. The late Justice Scalia has written that because the words aren’t in the Constitution, we have no Constitutional right of privacy. I am sure very few of us would agree with Scalia. I discuss the issue in detail in an earlier blog: Belief Checker.

• Florida’s Constitution, Article II, Section 7(b), adopted in 1996, provides: “Those in the Everglades Agricultural Area who cause water pollution within the Everglades Protection Area or the Everglades Agricultural Area shall be primarily responsible for paying the costs of the abatement of that pollution.” The Florida Supreme Court opined that the provision is not “self-executing” and requires legislative action to be enforceable. With the exception of a 2020 bill dealing with algae pollution of Florida’s waters, the Florida legislature has never acted, and taxpayers, not the polluters, are stuck with the cost.

• Floridians amended Florida’s Constitution to restore felons’ voting rights. The Florida legislature passed a law that prohibited voting by felons unless all their applicable court costs were first paid. The law was challenged in the Federal Court as being unconstitutional. The judge withheld action while the legislature was in session so that it would have time to act; when the legislature didn’t act, the judge ruled: “[T]his order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs.” The judge also said:

“Why is it that all the Republicans voted ‘yes’ and all the Democrats voted ‘no’? That is not a coincidence. It would be stunning if somebody told me that they did not realize that African-Americans tend to vote Democratic more than Republican.”

The judge did it right: he waited for legislative action; when none came, the political issue was subordinated to fundamental rights and the wish of the people, reflected in a Constitutional Amendment overwhelmingly approved.

The assumption of the Defendants in Reynolds v. State, the case of the 8 Gutsy Kids, is that even with the evidence presented about climate change and its harm and dangers to the Kids (essentially confirmed by the Judge in his remarks), the Legislature has the right to ignore the evidence, or decide that other matters weigh against addressing the evidence. That position assumes that our children have absolutely no fundamental or constitutional right to life and liberty – and to a climate system that is not polluted with the effects of CO2. From one of the Defendant’s briefs:

“Moreover, even with compelling evidence that there is anthropogenic climate change, the Legislature may decide that other matters, such as employment opportunities, resource development, or power generation, should be weighed against the evidence.”

After an intense study of the Political Question Doctrine, I conclude:

The political questions that should be addressed by our judicial system include at least individual rights that are Constitutional, fundamental, inherent to life itself, and are not addressed by, or are abused by, the legislature or executive branches.

How many deaths or cancer cases from CO2 pollution are permissible before a political question about our climate system is no longer a political question?

Nor should the legislature or executive branch be entitled to decide that it’s okay to continue to pollute our waters or soil with chemicals that destroy the ability of life to obtain clean water and food.

How many people are permitted to die or become diseased from lead poisoning before the right to pollute with lead poison is no longer a political question?

Nor should the legislature or executive branch be entitled to take action – or ignore taking action – that causes vast portions of the entire state to be submerged under rising seas.

How many people must lose their homes, their businesses or their lives – or how many communities must lose their tax base based on sunken lands, fleeing tourists, and flooded businesses that no longer operate – because of rising seas before rising seas is no longer a political question?

The fact that the Gutsy Kids claim to a stable climate system isn’t word-specific in the Constitution, or requires executive or legislative action to fill in the details of implementation, doesn’t mean a righteous claim to a stable climate system does not exist, or that the Court cannot act. Like the right to privacy, the unspecified rights to a stable climate system lie in implication of the words of the Constitution and, like privacy, are in its penumbra. The Court can act as it did in Brown V. Board of Education of Topeka, Kansas, where the Court took charge in declaring what the Constitution required and ordered the political branches to reform policies that had championed discriminatory education of black children and other minorities.

Either we have fundamental rights or we don’t. For those fundamental rights the legislature does not have the right to compromise or destroy or limit them; the Executive Branch does not have rule-making authority to deprive us of those rights. Those rights clearly have political implications but are not political questions which courts cannot hear and resolve when the legislature and executive branch are engaged in damaging action or inaction. They are absolute, essential for life itself.

Take Article II, Section 7(a) of the Florida Constitution: “It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise and for the conservation and protection of natural resources.”

Now, 7(a) is a statement of pure policy, and it obviously require legislative action. However, this policy speaks of “shall” – requiring positive action. That means something is to be done within the boundaries of its expressed concern by the Florida legislature; yet there has been totally inadequate legislative action. Should not the citizens of Florida, who enacted the Constitution for their benefit, have the right to petition the judiciary to order the legislative branch to perform its constitutional duties? Listen to the 3-minute video introducing this blog. That is a prime concern of the Gutsy Kids.

To breathe life into the Constitution, inaction – a “no” answer- should not be constitutional when the Constitution uses “shall.”

Inaction is anti-shall action and should not be permitted.

Jane Goodall’s statement, “We are each difference makers and we have to decide what kind of a difference we want to make” reminds me of the fact that doing nothing is a form of difference making.

There is no reason for the Court to hide behind a political question argument when faced with these sorts of questions about human rights. What is called for is action consistent with the mandate of the Constitution. Doing nothing is not Constitutionally permissible.


Dick Jacobs

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