3 to 2. Or 2 to 1? Today, one sitting Justice and two retired Justices of the Alaska Supreme Court ruled in favor of Alaska’s state government and its fossil fuel interests, and against our youth clients.
However, and more importantly, the dissents keep growing. Two of the active sitting Alaska Justices strongly disagreed with the majority opinion and wrote in favor of the youth. Just in the past two years, there have been five Supreme Court Justices in the Pacific NW and one Federal Court of Appeals judge writing beautiful, powerful dissents fighting for young people’s constitutional rights to a climate system that sustains and nurtures their lives.
So another way to look at it is we won two of the three votes of the active Justices still on the Alaska Supreme Court who participated in today’s decision: 2 active Justices in our favor. 1 active Justice against. 2 retired Justices who joined the majority.
Today was not the end of the road but rather another unjust delay. This loss of time, this denial of justice waged on the youth by the majority today is equal parts angering and motivating. This is often the way of the law. It builds and adapts, sometimes much too slowly in times of crisis, but while we are frustrated by the outcome today, it has also offered further evidence that our courts are heading in the right direction. Justice is coming and the youth we represent are making it happen.
“In my view, the law requires that the State, in pursuing its energy policy, recognize individual Alaskans’ constitutional right to a livable climate. A declaratory judgment to that effect would be an admittedly small step in the daunting project of focusing governmental response to this existential crisis. But it is a step we can and should take.”
- Alaska Supreme Court Justices Maassen and Carney, January 28, 2022
A Critical Dissent
Today’s decision was issued by five Alaska Supreme Court Justices: three of whom still sit on the bench and two who have retired. The majority opinion was written by only one active Justice on the bench, Justice Winfree; he was joined in the decision by two retired Justices – Justices Bolger and Stowers. Importantly, the remaining two Justices – Justices Maassen and Carney, both of whom still sit on the bench – dissented in this decision, ruling the youth should be able to protect their rights to a climate system that sustains life under the Alaska Constitution.
Following the recent Supreme Court dissents in Chernaik v. Brown (Oregon) and Aji P. v. State of Washington and Judge Staton’s dissenting opinion in the Ninth Circuit Court of Appeals, Justices Maassen and Carney wrote that the law “…requires that we explicitly recognize a constitutional right to a livable climate — arguably the bare minimum when it comes to the inherent human rights to which the Alaska Constitution is dedicated.”
The two dissenting Justices continued, “Allegations that climate change destroys natural resources or even limits their continuing availability for present and future generations clearly implicate the State’s stewardship responsibilities under article VIII.” They agreed with the youth that “the Alaska Constitution recognizes the right to a climate system that is healthy enough to ‘sustain human life, liberty, and dignity.’”
The Current Alaska Supreme Court. Only three of these active justices pictured ruled on this case (The two dissenting justices: Justice Maasen pictured front row, far left, and; Justice Carney pictured front row, far right)
The two dissenting Justices agreed with the youth that claims involving any constitutional rights affecting individual’s ability to safely raise families, practice their religious beliefs and cultural traditions and to access clean air, water, shelter and food can be heard by courts. They said it is basic in our system of law that courts are asked to answer hard questions about our rights.
The Justices concluded their dissent – which also cited recent climate litigation dissents from Ninth Circuit Court of Appeals Judge Josephine Staton and Oregon Supreme Court Chief Justice Martha Walters – with the following: “In my view, the law requires that the State, in pursuing its energy policy, recognize individual Alaskans’ constitutional right to a livable climate. A declaratory judgment to that effect would be an admittedly small step in the daunting project of focusing governmental response to this existential crisis. But it is a step we can and should take. For that reason I respectfully dissent.”
“This decision today is a 2-1 win for the youth from the active justices on this Court. And one day soon, it will be the majority opinion. More and more judges around the country and the world are finally embracing their constitutional role to be a check on the political branches of government that are destroying the planet and lives of children. Today, Justice Winfree and two of his retired colleagues told Alaskans that their politicians have unchecked permission to continue to set policy that explicitly prioritizes the monied interests of fossil fuel development over the lives and health and safety of children. On no other policy issue that so blatantly destroys lives and violates constitutional rights would this Court completely defer to the legislature’s decision and tell citizens who are being harmed by their own government’s actions that they have no right to even have their claims heard by the judiciary, the very body charged by our nation’s founding fathers with enforcing the constitution and protecting the rights of the people. In time, today’s decision will join such egregious denials of human rights as Dred Scott and Korematsu in the trash bin of judicial history.”
-Julia Olson, Chief Legal Counsel for Our Children’s Trust and lead counsel in Juliana v. U.S.
Andrew Welle, lead counsel for the Alaska youth, the team at Our Children’s Trust, and co-counsel in Alaska are already planning next steps. They have already begun working on a motion for reconsideration to the Court, asking that the full Court, including the two Justices who filled the seats of the retired Justices and thus did not participate in this decision, carefully review the errors Justice Winfree made. And that’s not all. We will also carefully look at the next case to bring on behalf of youth in Alaska to make sure the Alaska courts have a chance to right the ship before it is too late.
Sagoonick v. State of Alaska youth plaintiffs
How Does Today’s Decision Compare to the August 2021 Ruling in Held v. State of Montana?
In stark contrast to today’s injustice in Alaska, the courts of the State of Montana recently OPENED their doors to hearing climate evidence from the children of their state. In Montana, the court ruled quickly that youth will have the opportunity to present their evidence and to have their claims of unconstitutional state climate action ruled upon by the courts in Montana. Our Children’s Trust is actively preparing for trial in this case and will represent and support those Montana youth as they seek victory and climate justice in their state constitutional lawsuit. The Alaska courts should take a lesson from the Montana courts, and hear the children’s factual evidence of their government’s intentional worsening of the existential harms caused by the climate crisis.
What’s Next for Alaskan Youth?
The 16 young Alaskans in Sagoonick v. State of Alaska will now meet with their attorneys to determine which of several available options for continued climate legal action in Alaska they would like to pursue. They are not done fighting for constitutional protection of their right to a safe climate in The Last Frontier. Today may have been an injustice, but it was not a conclusion.
In the meantime, we thank the many communities and organizations who submitted amicus or “friend of the court” briefs in powerful support of this case and these incredible young people, including Alaska Native groups, the League of Women Voters Alaska, and 31 law professors from 26 law schools.
To the 16 Alaskan youth in this case: we thank you for your extraordinary bravery, your commitment to climate justice, and your fierce determination. Our journey with and alongside you has only just begun and we will not rest until we win, together