Is breathable air and livable land a right? Alaska Supreme Court will decide

The Alaska Supreme Court heard oral arguments Wednesday in what could be a landmark case for combating climate change.

The case was brought by a group of young Alaskans, headline by Esau Sinnok of Shishmaref, who argue that Alaska is not only not doing enough to combat climate change but that its energy policies are actively encouraging damage to the climate that will harm young Alaskans.

“Climate change is already profoundly harming these young plaintiffs,” said the plaintiff’s attorney Andrew Welle in his closing comments. “The state has known of these profound dangers for decades and in the face of a climate crisis and in the midst of that knowledge, they have enacted a statutory energy policy that promotes fossil fuels, knowingly contributes to climate change and knowingly harms these young plaintiffs.”

Alaska has been on the fore-front of feeling the impacts of climate change as communities, particularly rural and Alaska Native communities, have seen erosion of riverbanks and coastline accelerate, sea ice diminish and sources of food for traditional subsistence lifestyles shrink or disappear altogether.

Sinnok’s home village of Shishmaref voted in 2016 to relocate because of erosion related to rising sea levels.

The core issue here is whether a livable environment is a fundamental right guaranteed by the Alaska Constitution. The court has already signaled that it’s not interested in weighing in on forcing the state of Alaska to take any specific actions, as requested by the plaintiffs, to combat climate change such as emissions limits.

Instead, the court will likely decide whether, as Justice Susan Carney it, “breathable air and land that sustains life” is a fundamental right core to the pursuit of life, liberty and the pursuit of happiness.

“Does there come a time when we should proclaim that breathable air and land that sustains life is a fundamental right and is part of the public trust?” she asked the state’s attorney Anna Jay.

Jay argued the court should take no action and should refrain from declaring any new rights related to the environment. She said making such a declaration while refraining from ordering specific actions wouldn’t be useful to the state.

Another justice asked whether it would be helpful to find that the environment is, in fact, a constitutional right so things could be argued with that in mind. Jay said it would only create more litigation.

“The problem is that it would not clarify or narrow litigation going forward,” she said. “In fact, it would lead to additional excessive litigation because the issues that are raised for the claims for injunctive relief here would only reappear in future litigation.”

The core argument for the state is that it must also balance other competing interests such as job creation, the economy and oil development against the environment. Jay also argued that the court isn’t equipped to make decisions about environmental policy and that those decisions are best left to the political branches of government like the Legislature and the governor.

One of Republican Gov. Michael J. Dunleavy’s first actions in office was to eliminate a climate change task force and scrub the state’s websites of references to climate change.

The argument about competing interests seemed to strike a chord with some of the justices, who noted that the Alaska Constitution has resource development baked right into it. Justice Daniel Winfree asked Welle if there aren’t similar arguments in favor of a guarantee for a job.

“It seems to me that someone else could look at these same provisions and say given the that there’s an inherent right to the enjoyment of rewards of industry,” Winfree said. “Couldn’t someone else come in and say, ‘I have a constitutional right to a job in these industries and if you shut down an entire industry, then you violated my right to an economic opportunity?’”

Welle responded that the Alaska Constitution’s resource development provisions should take a back seat to the fundamental rights it guarantees.

“I think that the answer is, ‘no,’ given that Alaska’s constitution is dedicated in Article 1, Section 1 to the protection of fundamental due process and liberty interests,” he said. “All of these provisions of the Alaska Constitution have to be understood within the context of protection of fundamental liberties and other interests and the safety of Alaskans.”

That’s when Justice Craig Stowers jumped in to remind Welle of the state’s founding being centered on resource development.

“I don’t think so. I think that that’s part of it, but I don’t think that’s all of it,” he said.

Justice Peter Maassen entered the discussion to point out that even if the Supreme Court declares the right to a livable environment a fundamental right that it won’t automatically result in concrete action. He agreed that the new right would have to be balanced against the rights discussed when it comes to resource development and other issues.

The court took the issue under advisement and will issue a written opinion at a later date.

Why it matters

Sinnok v. State of Alaska is an emerging type of case where young people bring legal action against governments for failing to do enough when it comes to combating climate change, and it could be a landmark victory if the court rules in favor of the youth that brought this case.

Though the justices don’t appear likely to force the state’s hand on any specific policies, whether it be curbing the production of fossil fuels or the reduction of emissions, the ruling would give groups ammo for future efforts both in the courts and in the Alaska Legislature.