Twelve Virginia Youth Sued the State, Asserting their Right to a Healthy Climate
One of the plaintiffs in Layla H. v. Commonwealth is from the Fredericksburg area. The state Supreme Court recently declined to hear the case. What happened and what's next?
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
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For about a year when she was 11, Cadence R-H kept track of major climate events.
Scary storms, downed trees in her favorite park, crushed power lines causing an electrical outages—these were events she collected as evidence in a lawsuit against the Commonwealth of Virginia.
“She had to write about what she was actually observing—events that are atypical for our area,” Cadence’s mom, Rebecca, said. “Massive storms. Tornadoes. The tremendous increase of tick born illness—this backdrop of kids’ lives that aren’t being documented—she and other kids across the Commonwealth had to actually pay attention to.”
Cadence, a student who attends public school in the Fredericksburg area, is one of the 12 youth plaintiffs in Layla H. v. Commonwealth of Virginia, a petition filed in 2022. (The Advance is withholding the family’s last name because she is a minor.) The plaintiffs are represented by attorneys with Our Children’s Trust, a nonprofit public interest law firm that works to protect young peoples’ right to a healthy atmosphere and safe climate, according to its website.
The Virginia case argues that the state’s “historic and ongoing” reliance on fossil fuels is causing and contributing to the climate crisis, and that the state has violated the plaintiffs’ constitutional rights by not upholding its “public trust” duty to “protect elements of the public domain, including atmosphere.”
Last month, after a three-year journey of filings, responses, amicus briefs, and oral arguments before both the Richmond City Circuit Court and the Virginia Court of Appeals, the state Supreme Court declined the plaintiffs’ request to review the lower courts’ dismissal of the case.
“They don’t offer any written justification [for their denial],” said Nate Bellinger, the lead attorney for the plaintiffs in Layla H. v. Virginia.
Based on questions from one of the three Virginia Supreme Court judges who heard brief oral arguments in support of the request to review the case, Bellinger said the judges likely are of the opinion that “these types of decisions are really legislative decisions best made by political branches.”
“That’s frankly a response we hear a lot from judges, which is quite frustrating, honestly, because what we are asking for is for the court to look at these specific laws and government conduct and determine whether or not it is constitutional,” Bellinger said. “Virginia is the state where the idea of juridical review originated in the 1700s, so it’s frustrating that 250 years later, they’re walking that back and treating this climate case differently.”
“The environment is a public good”
Layla H. v. Commonwealth is one of multiple state-level legal actions that Our Children’s Trust has launched in recent years. There are active youth-led lawsuits in Alaska, Hawaii, Utah, Montana, and Florida, and other legal actions in all 50 states.
There’s also a federal case, Juliana v. United States, that was filed in 2015. Most recently, in December, the 21 plaintiffs in that case have asked the Supreme Court to review dismissal by the U.S. Ninth Circuit Court of Appeals.
“They emphasize that every judge who has reviewed their claims, both in the district court and the Ninth Circuit, concluded that they have demonstrated they are suffering personal harm, and that their ongoing injuries are directly traceable to government actions,” according to a summary of the most recent actions in the case.
At the heart of the cases is the argument that the environment is a public good, and that the children’s constitutional right to life and liberty is being violated by failure to protect the environment, Rebecca said.
“And because they’re kids, they can’t exercise their right to vote,” she said. “They feel as though they have no legislative relief, so they have gone to the courts as last recourse.”
Rebecca became aware of the federal case and state-level actions through her environmental work, which includes being a member of the Virginia State Air Pollution Control Board. She said she raised the idea of being one of the Virginia plaintiffs to Cadence, but emphasized that “this was not a decision we could make for her.”
“It had to be something she’d be willing to spend time on,” Rebecca said—and it was.
“If you actually read the testimony of these kids, it is heartbreaking,” Rebecca said. “They are describing this world—their world—as being so pervaded by anxiety and fear over polluted waters and polluted air. The pervasive anxiety is so enormous.”
The youth-led cases have been successful in several states, most recently in Montana, where in December the state Supreme Court agreed with the plaintiffs that the state’s constitution establishes their right to a clean, healthy environment.
“Plaintiffs showed at trial—without dispute—that climate change is harming Montana’s environmental life support system now and with increasing severity for the foreseeable future,” the six-justice majority decision in that case states, according to an article in the Daily Montanan.
The decision also found that a state law limiting analysis of greenhouse gas emissions during environmental reviews violates the Montana Constitution and prohibited the government from acting on it.
In the Hawaii case, Bellinger said, the state “ended up settling right before trial, but we had good decisions from the court early on confirming that it is up to the courts” to uphold plaintiffs’ right to a clean, healthy environment.
“A silver lining”
Cadence’s dad, Lee, said the family “shares the disappointment of all the plaintiffs and their families that the Commonwealth Supreme Court declined to step up and take the responsibility to protect their constitutional right as residents of the Commonwealth.”
Bellinger said there is a silver lining to the Layla H. v. Commonwealth’s fate in Virginia, which is that the Court of Appeals dismissed the state’s position that it had “sovereign immunity” and could not be sued “even if they’re violating the plaintiffs’ right to life, liberty, or property.”
“That’s a stunning proposition, and thankfully, the Court of Appeals did not go along with that,” he said.
And there are possible future steps that Cadence and the other plaintiffs in the Virginia youth climate case can take, he said, such as seeking “declaratory relief” by asking the courts to direct the Commonwealth to “stop doing what it’s doing to harm these young plaintiffs.”
“These harms happened yesterday, today, and they’re ongoing,” Bellinger said.
He said that Cadence and the other plaintiffs in Layla H showed great courage in standing up and suing their government.
“That’s not something that most young people are doing and it’s a real honor to have represented them,” he said.
Bellinger said he believes that whether or not the plaintiffs win in these cases, the stories they tell matter and make a difference.
“Over two million people read about the Virginia case,” he said. “It does make a difference because it’s inspiring folks.”
“Legal change never works as quickly as we want.”
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