Come one, Come all! The Climate Kiddie Carnival Calls!

Curiouser and curiouser

Over the past decade or so, radical environmentalists have employed a rather far-fetched and some would say infantile legal strategy to short-circuit the democratic process and impose by judicial fiat its extreme carbon-free agenda: climate lawsuits ostensibly led by children.

This past week the kiddie show arrived in Wisconsin, with a climate lawsuit filed in Dane County. Where else?

Essentially, what’s happening is that adult climate activists hide behind children and manipulate them for their own political gain. From Montana to Hawaii and now Wisconsin, children and teenagers—sometimes as young as eight—are “suing” the federal and state governments, claiming that democratically enacted energy laws violate their constitutional rights.

You gotta hand it to the activists. Who among us could ignore the woeful testimony of a 14-year-old describing his panic attacks over global warming, or the 17-year-old who says she cannot attend college because of climate anxiety?

Just this past week, as reported widely, Ella Emhoff, Kamala Harris’s step-daughter, posted on TikTok that she was one of those victims: “It’s just, it feels so big. I think everything with the environment is really f—g getting to me. I experience a lot of climate anxiety like all of us do. It’s not funny.”

No, it’s not funny at all, because Emhoff and all these youthful litigators are really being traumatized, not by climate change but by a doomsday narrative hawked relentlessly by the media establishment and the progressive left.

Unquestionably, beyond all the emotion, there exists a host of legal and constitutional problems with these lawsuits. Not least, they are not so much about achieving narrowly tailored remedies for demonstrable harms as they are about goading the judiciary into claiming policy territory it has no right to occupy, such as dictating national energy policy.

At the same time, conservatives should not view these cases only as curiosities. They do pose real dangers to our economy and the ability of industry to survive, particularly in Wisconsin, where the Supreme Court progressive majority is just as wacky, and maybe more so, than the climate activists.

On the other hand, and this has some environmental attorneys concerned, the youth lawsuits open the possibility for a conservative U.S. Supreme Court to close the door on this type of litigation once and for all. In Wisconsin, too, it offers up a chance to revisit and perhaps reform through constitutional amendment the state’s public trust doctrine, which, through interpretation, went off the rails a long time ago before being reined in somewhat in 2013.

Let’s take a look.

The Wisconsin lawsuit

The most recent addition to the climate-folly roster is Dunn v. Wisconsin Public Service Commission. Fifteen children, aged 8 to 17, backed by Our Children’s Trust (OCT) and Midwest Environmental Advocates (MEA), filed a lawsuit in Dane County circuit court, asserting that state laws encouraging the use of fossil fuels violate the Wisconsin constitution and the public trust doctrine.

The plaintiffs cite a familiar list of injuries—respiratory illness, asthma, loss of cultural traditions, caused by “warming annual and seasonal temperatures, changes in precipitation patterns, increased flooding, declining winter snowpack and lake-ice coverage, alteration of lake and river ecosystems and resultant harm to aquatic life, changes in forest ecosystems, and increasing drought and risk of fires.”

“This degradation of Wisconsin’s physical environment and public trust waters is harming plaintiffs’ physical and mental health; damaging their homes, property, and farms; disrupting cultural practices and access to traditional food sources; causing economic losses; and impairing plaintiffs’ access to and enjoyment of public trust waters,” the complaint states.

And, of course, the complaint asserts, the climate impacts in Wisconsin disproportionately affect and endanger children and youth.

“As children, plaintiffs are especially susceptible to air pollution and climate injuries because they experience greater proportionate exposure than adults by breathing more air, drinking more water, and eating more food per unit of bodyweight than adults,” the complaint states. “Children’s still-developing bodies and minds are uniquely vulnerable to air pollution, extreme heat and weather, and diseases.”

They don’t leave out post-traumatic stress, either.

“Climate change is causing children to experience a wide range of mental health impacts, including reduced capacity for learning, lower emotional regulation capacity, increased restlessness and distraction, and detrimental effects on childhood cognitive development,” the complaint states.

As such, the plaintiffs want laws that prohibit the Public Service Commission from requiring utilities to increase the amount of electricity the state obtains from renewable energy sources to be overturned as unconstitutional. Among others, it targets statutes limiting the commission’s consideration of air pollution impacts in permitting, as well as its ability to impose renewable resource requirements.

Now all of this would be one thing if it were testimony before a legislative committee considering the plaintiffs’ request for statutory reform. But because they cannot be assured of imposing their will with the people’s elected representatives potentially standing in the way, the activists travel along the highway of judicial activism—authoritarianism in a robe—and what better path to take when radicals are in charge of the state’s highest court.

The trend of children-know-better-than-adults and lawmakers is hardly unique to Wisconsin. It is part of a coordinated campaign stretching back a decade, stoked by if not originating with the rise of Greta “How Dare You?” Thunberg.

The original and most famous youth case, Juliana v. United States, was filed by 21 children in Oregon in 2015. Plaintiffs argued they had a fundamental right to a “safe and stable climate system” and that atmospheric carbon dioxide concentrations were already well above the level necessary to maintain such a system. After years of litigation, delays, and appeals, the Supreme Court finally ended the case in March, declining to hear it.

In the 2023 case, Genesis v. EPA, 18 California youth accused the Environmental Protection Agency of violating their rights by “discounting the economic value of their lives and their future when it decides whether and how much climate pollution to allow.” In Held v. Montana, youngsters scored a rare win when a state judge ruled that Montana’s constitution guaranteed the right to a “stable climate system,” striking down laws that barred regulators from considering climate impacts.

The Montana Supreme Court upheld the ruling in 2024, though lawmakers are crafting laws designed to circumvent the determination.

Together, these cases illustrate the broader strategy at work: bypass legislatures and Congress by turning to the courts. If lawmakers will not ban fossil fuels, then environmentalists will have the courts do it for them, as Breakthrough Institute deputy director Alex Trembath wrote in 2024 in a piece entitled “We Can’t Sue Our Way to a Stable Climate.”

“In both Juliana and Genesis B, the activist litigators argue that their (mistaken) understanding of climate science justifies an immediate government ban on fossil fuel use and a brute-force takeover of the American energy system,” Trembath wrote on the research center’s website. “Throughout multiple dismissals, the courts rightfully rejected this argument and the notion that the judiciary should ‘step into [the] shoes’ of the legislature and the executive, as OCT’s lawyers insisted.”

Trembath calls the enterprise the Climate Litigation Industrial Complex, and that’s what we’re facing now in Wisconsin. The OCT lawsuit indeed is asking the court to “step into [the] shoes” of the legislature and the executive, and environmentalists may have another state where it will work. It seems like every week I write about yet another example of how progressives try to undermine democratic accountability by sustaining and advancing unconstitutional power, and now here we are again with another example right here in Wisconsin.

So far, though, except in Montana, the cases haven’t been very successful, and prospects for the remaining cases look bleak, given the current composition of the U.S. Supreme Court. Unfortunately, as Trembath lamented, such a blatantly anti-democratic legal agenda has already triggered scores of other lawsuits and and excited the environmental base.

“That movement is large, extremely well funded, not known for its strategic activist restraint, and ideologically sincere in its view that climate change permits a supra-democratic takeover of the institutions of government and control over the industrial economy,” he wrote.

I would add that, if Montana can happen once, it can happen again, and with a progressive-controlled state Supreme Court, Wisconsin stands as a likely candidate for that crown.

Who’s your daddy?

One of the most troubling and crazier aspects of the lawsuits is the deliberate and manipulative use of children as plaintiffs, most certainly a ploy to capture sympathetic headlines from the progressive corporate media.

Or, it could be that it represents the environmental movement’s own stunted development, as Trembath wrote in 2024: “One way to explain the Kids Climate Lawsuits is the story of activist adults using real children’s voices as sympathetic sock-puppets for an extremist campaign. Another is that the logic of the lawsuits themselves is the logic of a child—morally black-and-white and untroubled by the nuances and frictions of the real world.”

To be sure, critics have noted that these cases succeed as public relations exercises for their political base but fail as serious legal remedies. UC Berkeley professor Dan Farber, an environmentalist himself, warns that they risk doing real harm to their own movement by pushing courts into policy debates they cannot resolve.

“As a society, we clearly have not lived up to our obligations to our children and future generations,” Farber wrote on a 2023 blog at Legal Planet. “And the publicity from such lawsuits might help mobilize people. But that is not really what the judicial process is meant for. In addition, there is the chance that the lawsuit might backfire legally, for instance, with a ruling that individuals never have standing based on harm from climate change.”

Indeed, in a 2007 case, Massachusetts v. EPA, chief justice John Roberts wrote, in a dissent joined by justices Clarence Thomas and Samuel Alito and then justice Antonin Scalia, that alleged harm from climate change was too nebulous for the courts to give standing to plaintiffs claiming it.

“Global warming may be a ‘crisis,’ even ‘the most pressing environmental problem of our time,’” Roberts wrote. “Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it.”

But it was not a problem that had escaped the attention of policymakers in the executive and legislative branches of government “who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change,” Roberts wrote.

“Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the government’s alleged failure to comply with a rather narrow statutory provision,” he wrote. “I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem. Nor does it render petitioners without recourse.”

In addition to the optics of using children to tug at heartstrings, also disturbing is the involvement of mental health professionals who double as climate activists. Writing for the Breakthrough Institute last year, Jessica Weinkle, an associate professor at the University of North Carolina-Wilmington, exposed the connections between climate change advocacy, research, and clinical psychology, highlighting how mental health professionals have helped climate activists drive youth-led lawsuits.

In both Held and Juliana, Weinkle wrote, psychiatrist Lise van Susteren not only testified about the psychological harms caused by climate change but trained her fire on the federal government as the cause of it. Interestingly, Weinkle revealed, Van Susteren was a co-founder of the Climate Psychiatry Alliance, which trains and works with “climate aware” therapists, and was also a member of the executive committee of Climate for Health, an eco-America program: “The entities are focused on politicizing the health care system and using medical professionals to advance preferred climate policy,” Weinkle wrote.

That example just scratched the surface of the links between radical activities and their essentially in-house therapists, with children in the middle as ideological instruments.

“At the core of all this are children—children climate advocates are now using as pawns in their dysfunctional game of climate politics,” Weinkle wrote. “With climate advocates’ efforts having done little more than set back their own decarbonization efforts over the last 40 years, it makes sense that they’d try on a new (and more sympathetic) face.”

Noe of this should surprise us. The progressive left is as anti-children as it can get. From unrestricted abortion to child sex mutilation at the altar of transgenderism, to support for government school monopolies, the best interests of youth are seldom considered a main entree on the progressive policy menu. In fact, it’s funny that the Dunn complaint asserts that children’s “still-developing bodies and minds are uniquely vulnerable to air pollution, extreme heat and weather, and diseases.”

Maybe, but, in the progressive view, those still-undeveloping minds are somehow not vulnerable to ideological propaganda pumped into them in schools and in media throughout critically important developmental years. The reality is that once the system gets through with them, these career political activists target and gather all the vulnerable young people they can for exploitation. Call them climate groomers.

And that’s another reason these court cases should be kicked to the curb. In addition to Roberts’s broad reasoning about amorphous claims of harm, minor-aged litigants do have still undeveloped minds, and, while they have rights and voice, they are simply too young to have formal standing in the legal system, even ostensibly so. Children shouldn’t be able to bring climate lawsuits in their name for the same reason children do not have the right to vote: They are not developmentally ready to make such judgments.

To be sure, in these cases the legal plaintiffs are the guardians, but then it’s the guardians who should be publicly bringing the lawsuits and arguing that the lack of emission bans is harming their children. Naturally that wouldn’t be nearly as sensational as parading the children themselves in front of the world. So let’s be honest about what is going on in Dunn. The children are no more plaintiffs than I am; OCT and MEA are the real plaintiffs and the manipulated kids are just a way-too-obvious way to sneak into the courtroom.

The Public Trust Doctrine

The Wisconsin case highlights another issue—the attempted misuse of the public trust doctrine.

Traditionally, the doctrine meant that navigable waters were held in trust by the state for public use, including fishing, navigation, and hunting. In Diana Shooting Club v. Husting, the Supreme Court limited public rights to the ordinary high-water mark.

That was 1914. However, over the years, courts expanded the doctrine this way and that, even including natural scenic beauty as a right, as if natural scenic beauty can be objectively defined, and the state DNR and others have attempted to expand its jurisdiction to non-navigable lands.

The Dunn lawsuit would push this doctrine further still, arguing that the state’s duty to preserve public waters under the doctrine requires it to regulate carbon emissions statewide and to impose non-fossil-fuel edicts on power plants and other energy sources. Specifically, in Dunn, the plaintiffs allege that the targeted laws have caused, and continue to cause, air pollution from fossil fuel-fired power plants that impair and endanger Wisconsin’s public trust resources, thereby hindering the plaintiffs’ ability to access, enjoy, and use public trust waters. If embraced, it would transfer energy policy from the legislature and executive to the courts

The problem for progressives is that the limits of the public trust doctrine were established in 2013, in Rock-KoshKonong Lake District v Wisconsin DNR. The case involved the DNR’s claim that, through the public trust doctrine, it had the authority to protect non-navigable land and non-navigable water, such as wetlands, above the ordinary high water mark.

The court said no.

“There is no constitutional foundation for public trust jurisdiction over land, including non-navigable wetlands, that is not below the OHWM of a navigable lake or stream,” the justices ruled. “If the public trust were extended to cover wetlands that are not navigable, it would create significant questions about ownership of and trespass on private land, and it would be difficult to cabin expansion of the state’s new constitutionally based jurisdiction over private land.”

In other words, extending the doctrine in such a way would be a slippery slope. The agency could then use the doctrine to not only protect non-navigable land but regulate non-navigable land to protect public trust water, as well as compel the state to end prohibit certain activities, essentially a taking of private property. The limitations placed on the doctrine in Diana Shooting Club were inconsistent with the interpretation of the public trust doctrine espoused by the DNR, the justices wrote: “Public trust jurisdiction has always been confined to a limited geographic area.”

That’s not to say there can’t be regulations of non-navigable lands, the justices stated, but that such regulatory authority would derive from the state’s police power, through statute.

“This review of the constitutionally based public trust doctrine does not disarm the DNR in protecting Wisconsin’s valuable water resources,” the court determined. “For instance, the DNR has broad statutory authority grounded in the state’s police power to protect wetlands and other water resources.”

The court went on to quote Just v Marinette County, in which it upheld a challenged zoning ordinance:

There was no question, the Rock-KoshKonong justices wrote, that the court was not relying on the public trust doctrine for its ruling in Just but on the state’s police power, and the court even noted that the Marinette County ordinance applied to “lands within 1,000 feet of the normal high-water elevation of navigable lakes, ponds, or flowages and 300 feet from a navigable river or stream.”

“These dimensions far exceed the geographic limitations of public trust jurisdiction,” the Rock court wrote. “It should be obvious that the state does not have constitutional public trust jurisdiction to regulate land a distance of more than three football fields away from a navigable lake or pond.”

And that, the court determined, made for a crucial distinction:

To sum up, the public trust doctrine grants the DNR the authority to regulate navigable water only; it does not extend to non-navigable wetlands or uplands. That’s it. Period. It’s can’t be used to regulate any use of private property above the ordinary high water mark.

The state can seek to use its police power, through statute, to regulate uses of non-navigable lands—such as coal-fired power plants—for their impact not only on public waters but on public health, but such enactments take place through democratic enumeration of legislation that allows all sides to participate and in which competing interests are balanced. There is no constitutional proclamation, only representative due process.

And, should the state’s actions go too far in doing so, there are still the constitutional protections of private property to consider, as the Rock court observed.

“There is no constitutional foundation for public trust jurisdiction over land, including non-navigable wetlands, that is not below the OHWM of a navigable lake or stream,” the court wrote. “Applying the state’s police power to land above or beyond the OHWM of navigable waters—to protect the public interest in navigable waters—is different from asserting public trust jurisdiction over non-navigable land and water.”

Of course, in Wisconsin, there is still the hocus pocus of a radical high court that would seem inclined to expand the public trust doctrine to the point of private-property abolition, and that’s why this case in Wisconsin is more than a curiosity and a nuisance.

However, it can also be an opportunity to reopen the discussion of the public trust doctrine and define its boundaries, perhaps by constitutional amendment. Applying “natural scenic beauty” to the concept was already a jump over the shark; applying it now to emissions that might somehow, some way impact some navigable waters somewhere is complete immersion in the shark tank.

Over at the Breakthrough Institute, Weinkle wrote that a generation has been captured at least temporarily.

“The next generation’s future is now caught in the warped politics of misleading messaging, spurious litigation, strategic lawfare against the oil industry, and a rejection of any pragmatic solutions that address environmental and humanitarian concerns,” she wrote. “And their path to a sustainable, healthy, and wealthy future will be made all the more treacherous with the health sciences having jumped aboard the sinking ship of climate change advocacy.”

Wisconsin’s case shows how far radicals have already tried to stretch the public trust doctrine. It also shows how merciless the left is when it comes to power.

So keep an eye on the climate carnival and keep an eye on the DNR.