Guest post by Lauren Sancken and Jen Marlow

We recite that we believe the children are our future, but we continue actions that could leave them a world with an environment on the brink of ruin and no mechanism to assert their rights or the rights of the natural world. This is our legacy to them described in the self-congratulatory words of judicial restraint.”

– Justice Gonzalez, Dissenting in Aji P. v. State.

Last fall, the Washington Supreme Court declined to hear Aji P. v. State,a case about whether Washington state’s energy and transportation systems, which have caused high levels of greenhouse gas emissions for decades, violate youth’s rights to life, liberty and property, along with their rights to safety, security and bodily integrity, under the Washington Constitution. It is the third lawsuit brought by youth plaintiffs seeking to protect themselves from state-caused climate change. Had the court granted review, it could have decided whether to recognize a fundamental right to a stable climate system. It remains unclear whether we should believe that the State legislature is serious about protecting the human right to a healthful environment if at the same time it is undermining the conditions essential for sustaining human life.

As the dissenting opinion made clear, however, this case did not ask the Court to solve the existential problem of climate change. Instead, it asked the Court to allow the youth to present their evidence and decide whether it should step in to exercise its broad remedial authority to protect their fundamental constitutional rights where the political branches have violated them. At minimum, this Court should have granted review and considered what its role should be in settling constitutional questions and ordering a state-implemented remedy in the face of a climate emergency.

This was not an extraordinary or improper request. In fact, this Court has ordered that the government provide a remedy to reform unconstitutional state systems before. In McCleary v. State, this Court struck a balance between “deferring to the legislature … while also recognizing this court’s obligation” to ensure the State’s compliance with the constitution.  In Seattle School District v. State, this Court established that a declaratory judgment, a remedy requested by the Aji P. youth, “is peculiarly well suited to a judicial determination of controversies concerning constitutional rights and… the constitutionality of legislative action or inaction.”

The dissenting opinion recognized that a declaration of rights from the State Supreme Court would provide “meaningful relief even if it is not a magic wand that will eliminate climate change.” But the majority deferred to the branch of government whose systems are causing the climate crisis instead.

Of course, there were legal arguments for denying review—namely, that this case presents a nonjusticiable question. But that will not make sense to our children, nor will judicial restraint matter in a world on fire. Please explain the political question doctrine to our children when all they will wonder is why we, their parents, their elected leaders and their judiciary, did not demand our governments be held accountable when we had the chance. Please explain to the children of our future why, at this critical moment, there was no constitutional ruling from our courts.

Better yet, next time, please give them one.

Lauren Sancken is an Associate Teaching Professor at the University of Washington School of Law where she teaches primarily legal writing courses and co-directs the legal writing program. Her scholarship focuses on climate relocation, climate migration, and climate finance.

Jennifer Marlow is an Assistant Professor in the Dept. of Environmental Science & Management at Humboldt State University, and Affiliate Faculty at the University of Washington School of Law. She is co-founder of Three Degrees Warmer, a climate justice nonprofit, and is currently researching sea level rise risk to a spent nuclear fuel site on Humboldt Bay, California.