California’s wildfire season gets worse every year for Avroh H. The smoke and dirt enveloping the 14-year-old’s home in Palo Alto ushers in coughing and congestion that makes it hard to concentrate. Lately he has been prone to nosebleeds; he recently had one so bad it required burning a blood vessel. He is also an environmentalist who feels a deep and spiritual connection with nature. His passion grew from starting a nature club at school to suing the Environmental Protection Agency because, he says, the fight to save the climate is a fight that connects his health to that of the natural world.
Avroh is one of 18 young people who joined the newest in a series of lawsuits submitted on behalf of the youth who is struggle with the physical and emotional effects of the climate crisis. They accuse the EPA of failing to adequately protect children nationwide from environmental catastrophes, a new argument in environmental justice. It also claims the agency has discriminated against them by discounting the economic value of their lives and their futures while deciding how to regulate climate pollution.
Genesis v. United States Environmental Protection Agency, filed on their behalf by the nonprofit environmental advocacy group Our Children’s Trust, is asking a federal court to hold the EPA liable for what the plaintiffs view as negligence in violating “their constitutional fundamental right to life and equal protection under the law.” It also seeks clarification on the status of children as a protected legal class in the United States, claiming that environmental regulations typically disregard their specific needs.
“We are experiencing what no one should experience,” Avroh, who is identified only by his first name because of his age, said in a statement. “We are facing constitutional negligence. We challenge the EPA’s failure to protect us. The air we breathe has become a victim of their opposition.”
For decades, the EPA “has known that allowing climate pollution will harm children, but it has deliberately allowed the US to become one of the world’s largest contributors to climate change,” Our Children’s Trust said in a statement.
Many of the claimants suffer from asthma, which has been linked to toxic exposure. Increasingly severe wildfires throughout the West are exacerbating their health issues. This, the suit says, leaves many of them unable to enjoy the same quality of life as their peers because they are unable to engage in the outdoor activities and team sports that young people typically enjoy.
The EPA, according to lawyers for Our Children’s Trust, recognized the unique vulnerability of young children to climate change and environmental toxicity. “Children may be at increased risk for environmental hazards due to unique activity patterns, behavior and biology,” the agency’s 2021 policy on child health states.
According to the Center for Disease Control, children are vastly more vulnerable to pollution than adults, and not just because of their smaller size. Children consume more food and water per body weight than adults, they touch their eyes and mouths more often, and their bodies are not as adept at breaking down pollutants. Particles such as those released during wildfires can cause lasting cognitive impairment. The earlier in life, and the more repeatedly, toxic exposure occurs, the more likely a person is to develop chronic health issues and deadly diseases such as cancer. It is also a leading cause of child mortality; in 2016, 600,000 deaths of people younger than 15 was attributed to air pollution.
This isn’t the first time a federal lawsuit has revolved around children — after all, that’s how the groundbreaking desegregation case Brown v. Board of Education was structured. This is also not the first environmental lawsuit against the EPA, but it is unique in that its language focuses on the particular environmental vulnerability of children.
“Analysis like equal rights or due process [is] very adult-oriented,” said Phil Gregory, a lawyer working with Our Children’s Trust on the case. Gregory refers to the EPA’s analysis of environmental damage as a “discount rate analysis” – adults take top priority, with children and future generations largely an afterthought.
“The only way youth have an effective voice in our federal system is through the courts,” he said.
This approach may have some international support; the UN recently confirm children’s right to a clean, healthy environment, in accordance with international human rights law.
Last June, in the similar case Held against Montana, 16 youths accused the state of Montana, through its fervent support of the fossil fuel industry, of violating the state constitution’s provision that all residents have an inalienable right to a clean and healthy environment. The children won, in a historic first. In August, 14 youth in Hawaii suing the state Department of Transportation on similar grounds learned that the case will go to trial. These successes leave Gregory hopeful that precedents will be set — with more lawsuits running concurrently in Utah, Virginia and Florida.
The judge in the Held case issued a declaratory judgment calling the government’s actions unconstitutional. Gregory hopes to see a similar ruling against the EPA, which the suit says led a massive increase in fossil fuel pollution during its 50-year tenure, thereby failing future generations.
Michael Burger, a law professor at Columbia University, said it was a thorny question for the EPA, which is subject to changes in administration, and was, he said, “severely constrained by the Supreme Court.” However, he is hopeful that such a judgement, while not an order or other more forceful maneuver, could push the government into action. “I don’t think it’s just symbolic,” said Burger. “I think a statement of what the law is and where the government falls short would go a long way on many fronts.”
