Does Utah’s support for fossil fuel production violate youths’ constitutional rights?

Suit alleges state energy policy, by accelerating climate change, harms the youngest Utahns.

(Brian Maffly | The Salt Lake Tribune) The Monument Butte oil and gas field, south of Myton in the Uinta Basin, is home to at least 1,000 producing wells and hundreds more that are idled. The Bureau of Land Management has reversed its approval of a program to allow 5,750 more wells to be drilled here, citing climate impacts.

On any given day, 100,000 barrels of oil and 35,000 tons of coal are extracted from the ground in Utah. Those fossil fuels will turn into millions of pounds of greenhouse gases and air pollution when they are processed and burned.

This is a tiny portion of global emissions driving climate change, but it is the share within the power of Utah policymakers to influence.

Considering the toll these emissions are taking on the planet, does Utah’s tireless promotion of fossil fuel production violate its youngest citizens’ constitutional rights? Six Utah youths think so.

Their lawyers asked a state judge on Friday to allow their lawsuit to proceed to trial, arguing state policies run afoul of the state Constitution’s obligation to refrain from depriving anyone’s “life, liberty or property, without due process of law.”

The rapidly warming climate, thanks to the carbon dioxide pumped into the atmosphere from fossil fuels, threatens these young Utahns’ futures and must be addressed, according to Andrew Welle, an attorney with Our Children’s Trust.

If the state’s political leaders won’t do, the courts should step in, he argued.

“Every day that the state continues to promote and systematically authorize fossil fuel development worsens Utah’s dangerous air pollution and climate crisis and further endangers these youth’s lives, health, and safety,” Welle told 3rd District Judge Robert Faust in his Salt Lake City courtroom Friday. “It’s the court’s duty to determine whether that violates these youth’s constitutional rights.”

The impacts of climate change are apparent everywhere you look in Utah, from the disappearing Great Salt Lake to the dust-covered snowpacks that melt weeks early to deteriorating summertime air quality.

The suit specifically targets the 2006 Utah Energy Act, a policy recodified last year that promotes the development of oil shale, tar sands, oil, gas and coal, as well as emission-free renewable energy sources.

The case is one of numerous being litigated across the country by Our Children’s Trust, an Oregon-based nonprofit public-interest law firm. Other states facing similar suits include North Carolina, Washington, Alaska, Florida and Virginia, with one in Montana expected to go to trial next year. It would be first-ever children’s constitutional climate trial in U.S. history.

Issues raised in these suits, however, are political questions that should not be adjudicated, but settled through legislative and executive channels of state government, argued Assistant Attorney General Jeffrey Teichert, asking the judge to dismiss the case.

Without denying the youths’ futures are at risk from climate change, he argued the state is free to set environmental policy without interference from the courts.

“Designing environmental policy involves subjective judgments regarding how to balance priorities and methods of creating clean air, physical health, economic prosperity, and personal freedom,” Teichert wrote in the state’s motion to dismiss.

He noted that the U.S. Supreme Court has stated that the Constitution protects fundamental rights “deeply rooted in this Nation’s history and tradition.”

“A new policy proposal to cease or significantly curtail fossil fuel development is not implicit in this nation’s history and traditions and has nothing whatever to do with the concept of ordered liberty,” he wrote in the state’s motion.

If anything, fossil fuel extraction is grounded in Utah’s history and tradition.

Fossil energy development supports economic development and schools in many rural communities, providing thousands of Utah youths employment opportunities that might not be available, state officials have said in support of pro-energy policy positions. Utah’s energy resources also help drive the nation’s economy.

It is the Legislature’s role to weigh potential harm from energy development against the economic benefits in setting policy preferences, Teichert argued. Lawmakers could convene working groups to help sort out these questions.

That’s not the way the law works, Welle said. Deferring constitutional questions to the Legislature and working groups would turn Utah’s Constitution on its head.

“Under the State’s proposed model of convening working groups to decide whether children’s constitutional rights are being violated, courts would have to defer to legislative working groups on every other constitutional question, from parental rights to segregation and affirmative action, to COVID mask mandates, to the Affordable Care Act,” he said. “The courthouse doors would be closed to any constitutional claim that the State decided had economic or job implications. … The State can’t strip the judiciary of its vital role in interpreting the Utah Constitution and deciding life-threatening constitutional questions.”

Since 1960, Utah has produced 14 trillion cubic feet of natural gas, a billion tons of coal and 1.7 billion tons of oil, according to the suit. Burning these fuels released 3.4 billion tons of carbon dioxide, the greenhouse gas most responsible for climate change.

Faust took case under advisement. A ruling for the youths would allow their case to proceed to trial.