15 Children in Wisconsin File the Latest Youth Lawsuit Citing Climate Dangers – Inside Climate News

Youth climate activists in Wisconsin are suing the state’s Public Service Commission over state laws that they say perpetuate a fossil fuel-dominated electricity sector and undermine renewable energy, thereby exacerbating the climate crisis, which is already inflicting harmful impacts across the state. 

The filing comes less than two weeks after catastrophic flooding from severe storms ravaged southeast Wisconsin, damaging properties and disrupting the state fair in what the Wisconsin State Climatology Office says was the worst flash flooding event in the region since 2008. 

This type of extreme precipitation and flooding is becoming more frequent as the climate warms, driven primarily by greenhouse gas emissions from fossil fuel combustion, yet Wisconsin law prohibits the state’s electric utility regulator from taking these emissions into consideration when determining whether or not new fossil fueled power generation is in the public interest.

This restriction, as well as statutes that prohibit the state’s Public Service Commission from requiring utilities to increase the percentage of renewable electricity they supply, contribute to dangerous climate change and air pollution in the state and violate youth plaintiffs’ constitutional rights, the lawsuit asserts. 

The case, filed Friday in Dane County Circuit Court in Madison, Wisconsin, is the latest youth constitutional climate lawsuit launched by Our Children’s Trust, an Oregon-based nonprofit law firm that represents young people in climate suits against governments at the state and federal levels. The firm spearheaded the successful landmark youth cases in Montana and Hawaii and is currently representing youth in litigation targeting an Alaska LNG project, the Florida Public Service Commission and the Trump administration’s pro-fossil fuel executive orders. 

Youth plaintiffs in the Wisconsin case are also represented by Midwest Environmental Advocates. 

The new lawsuit alleges violations of the Wisconsin constitution, particularly rights to life and liberty and the right to the use and enjoyment of the state’s waters. The Wisconsin legislature is listed as a defendant for the public trust claim, while the Wisconsin Public Service Commission and its three members are defendants on all claims. 

The plaintiffs are 15 children and teens (ages 8 to 17) from across Wisconsin who claim to have all personally experienced harms stemming from climate change and fossil fuel air pollution, such as asthma and respiratory illnesses, mental health trauma tied to environmental degradation and extreme weather events, flooding of homes and communities and loss of access to lakes and rivers. 

“We have several plaintiffs from farming families who have seen their family farms disrupted by extreme rain events that are becoming increasingly prevalent, as well as by extended periods of drought. And they are questioning whether they will be able to continue their family tradition of farming in Wisconsin given the rapidly changing climate,” Tony Gibart, executive director of Midwest Environmental Advocates and co-counsel for youth plaintiffs, told Inside Climate News. 

Lead plaintiff Kaarina D. and her family had to relocate out of safety concerns after their property sustained damage from flooding, erosion and landslides. “The bluff where my family and I lived became unstable and dangerous, and we were forced to move,” she said. “Having lived this trauma in my home state was almost unthinkable and is directly linked to climate change.” 

In Wisconsin, the electric power sector is the largest contributor to the state’s greenhouse gas emissions, and fossil fueled power plants provide the vast majority—around 75 percent—of the state’s electricity. A 2019 executive order from Governor Tony Evers established a goal for Wisconsin to reach 100 percent carbon-free electricity by 2050. 

The youth plaintiffs, however, say that specific language in the state’s energy laws impede the transition to a decarbonized power sector and effectively lock in harmful levels of fossil fuel pollution. 

Provisions in a law governing Public Service Commission approvals of power plants, known as the plant siting law, explicitly prohibit the agency from considering the impacts of air pollution in deciding whether the project is in the public interest. 

Under this law, the Public Service Commission is required to consider adverse impacts “on other environmental values” such as ecological balance, public health and welfare and aesthetics of land and water and recreational use, but it is prohibited from determining “that the proposed facility will have an undue adverse impact on these values because of the impact of air pollution.” 

Wisconsin has interpreted air pollution to include greenhouse gas emissions, attorneys for the youth say, so these provisions effectively mean that the PSC cannot consider the harmful impacts of greenhouse gas emissions on the environment or public health in deciding whether a fossil fuel project is in the public interest. 

“The Commissioners have pointed to these laws and said because of them, our hands are tied and we can’t deny these permits. We can’t even look at air pollution or greenhouse gases,” said Nate Bellinger, senior attorney with Our Children’s Trust and co-counsel for the Wisconsin youth plaintiffs. 

Gibart said there is a clear pattern of the Public Service Commission greenlighting fossil fuel power plants. “We’re seeing utilities in Wisconsin propose large-scale natural gas plants, and we’re seeing the Public Service Commission continue to approve those. That trend is inconsistent with what we need to do to meet our renewable energy goals, and these laws are really at the center of that problem,” he told Inside Climate News. 

Youth plaintiffs are also challenging statutory provisions that prohibit the state Public Service Commission from requiring electric utilities to increase the percentage of renewable energy they provide beyond the 10 percent baseline. Utilities may still, with the commission’s approval, increase their renewable energy percentage, but the PSC cannot mandate that they do so. The lawsuit argues that Wisconsin’s renewable energy requirement under its Renewable Portfolio Standard is effectively capped at 10 percent. 

“These laws perpetuate an electricity sector in Wisconsin dominated by fossil fuels and constrain the Commission’s ability to procure more electricity from renewable energy sources instead of fossil fuels,” the complaint asserts.

Plaintiffs are asking the court to declare the challenged statutes to be unconstitutional and to order the PSC to stop enforcing them. They are also requesting the court to affirm their constitutional right to a stable climate system—which they argue is foundational to their rights to life and liberty—and to their right to use and enjoy Wisconsin’s waterways.

State courts in Hawaii and Montana have recognized that youth have the right to a stable climate under those states’ constitutions, which include explicit environmental rights provisions. While Wisconsin does not have an express guarantee of a clean and healthy environment in its constitution, lawyers for the youth plaintiffs argue that the state’s broad interpretation of its life and liberty rights and its public trust rights pertaining to state waterways should be considered to encompass climate-related harms. The climate crisis, they say, is already having adverse impacts on youth plaintiffs’ health, safety and quality of life as well as on the state’s lakes, rivers and streams. 

Recent advisory opinions on climate change from the International Court of Justice and the Inter-American Court of Human Rights, which clarify that a healthy environment and climate system are essential prerequisites for other human rights, could also potentially bolster plaintiffs’ legal claims. While the complaint does not cite to these advisory opinions, Bellinger said there is a good chance they will be referenced in plaintiffs’ forthcoming briefings. 

“These international courts are making clear that even when you’re talking about rights to life and liberty, you need certain baseline environmental and climate protections in order to be able to fully enjoy those rights,” he said. “I think that will be part of the argument going forward.”