Where to Listen:
The science supporting climate change has long been settled, but progress remains painfully slow. Especially here in Wisconsin, where we have laws on the books that are actively helping to keep fossil fuels burning here.
But maybe not for long. In this episode meet one of 15 kids who is suing our state over climate change.
Host:
Amy Barrilleaux
Guests:
Madeleine Bohn, Wisconsin High School Student
Skylar Harris, Attorney, Midwest Environmental Advocates
Resources for You:
Press Release: MEA and Wisconsin Youth Sue State Over Unconstitutional Laws Fueling the Climate Crisis
Transcript:
Amy Hi there, and welcome to The Defender, Wisconsin’s environmental podcast. I’m Amy Barrilleaux. The Defend is powered by Clean Wisconsin, your environmental voice, since 1970. So we have known for a long time, more than a quarter century, that in order to cool our rapidly warming planet, we need to cut emissions of carbon dioxide, methane, and other greenhouse gasses. The science supporting climate change has long been settled, but progress, as we know, remains painfully slow. Especially here in Wisconsin, where we have laws on the books that are actively helping to keep fossil fuels burning here. But maybe not for long. In this episode, meet one of the 15 kids who are suing our state over climate change. That’s right now on The Defenders. Last year, kids of all ages from communities across Wisconsin came together for something pretty grown up to file a lawsuit, the issue, their right to a safe, stable climate. Joining me is Madison Teen, Madeleine Bohn, and her attorney with Midwest Environmental Advocates, Skylar Harris. Thank you, Skyler and Madeline, for being here. Of course. Thank you for having us. Yeah. Thanks so much for having. Yes. So I think this case has gotten a good bit of attention, you know, suing. Because of climate change. So first, Madeline, I want to ask you, when did you first, I guess, become aware of climate and start to worry about what it means for your future?
Madeleine I mean, I think I grew up in a generation that’s always kind of had this background awareness of climate change, especially in my family. We were always very big on leaving the earth a better planet and that kind of thing. But I think it was really around the pandemic when we began to see the impacts of human activity and just how much that changed. Like I remember hearing stories about the like dolphins that you could see in like rivers in Italy or something like that. And I was like, wow, like humans are really making a difference on this earth and it’s not always for the better. So I would say that’s when I really became cognizant of how it might affect my future.
Amy Is it something that you think about a lot these days as you start to kind of look at becoming an adult in the future?
Madeleine Yeah, it’s a very scary prospect, the idea that we’re kind of marching into our own doom a little bit with some of the policies that we have in place right now. So I think, I would say I think about it daily and it definitely factors into big decisions I make about where to live and all that kind of stuff.
Amy So Skylar, I want to ask you, this is kind of a case that you don’t typically think about. So explain to me what’s happening. There’s young people, including Madeline, from I guess across Wisconsin, who are basically suing the state, is that what’s happening?
Skylar Yes, so the youth in this lawsuit, there are 15 of them, are suing the Wisconsin Public Service Commission and the Wisconsin legislature for violating their constitutional rights, which in this case include the right to life, to liberty, as well as the rights to a stable climate system and the right use and enjoy the navigable waters of the state under the with Trust Doctrine. So we’re suing based on two different statutes. The first prohibits the PSC from considering air pollution, meaning greenhouse gas emissions, when it is issuing certificates of public convenience and necessity to fossil fuel-fired power plants and other large emitters. And then the second prohibits the PSD from requiring utilities to get more than 10% of their energy from renewable resources. So we’re challenging both of those laws because in essence, the PSC is the one that regulates all of our utilities in the state, which means it’s the one that really controls how much pollution is coming out of our energy system. So hopefully by striking down these statutes, we give the PSD authority to bring in new renewable energy and make better choices for the future of the youth plaintiffs in this case, so as the rest of Wisconsin and protect their rights to life and liberty and the other things that I mentioned.
Amy So if I understand correctly, young people in Wisconsin, like Madeleine, are basically suing around these specific statutes that hamper the PSC. So when a utility wants to build new power generation, in this moment, because of statutes within the state of Wisconsin, cannot say, hey, you know what, this power plant is going to emit air pollution and greenhouse gasses. So. We don’t want to approve it. We want to improve wind or solar instead. Or what was the other statute? Remind me. Yes.
Skylar Yeah, so the second one was related to the Renewable Portfolio Standard, which basically says that utilities have to get at least 10% of their energy from renewable resources. For the utilities, it acts as a floor, so once they hit that 10% threshold, they can choose to go above it if they want to, but for the PSC, it act as a ceiling. So once utilities hit that ten percent threshold, the PSC can’t force them to acquire any renewable energy generation. So, like you just perfectly summarized, even if the PSC acknowledged, you know, we don’t want any more fossil fuel in the state of Wisconsin, they couldn’t mandate that the utility companies do anything about that.
Amy So Madeleine, when you hear about these statutes that basically hamstring the PSC from being able to stop more fossil fuel power plants in Wisconsin, so we had a new one approved not too long ago here in Wisconsin. A big, huge gas plant. How did that make you feel that there were laws in place that didn’t, that instead of tackling climate change and fossil fuels kind of helped the fossil fuel industry stay in the state?
Madeleine Yeah, it’s quite frustrating. Because like as youth we don’t have a ton of say in the creation of those rules or statutes but we are the ones who are going to have to live with the consequences of them and the people who currently reside in power don’t actually have to leave with the worst of the effects of their decisions.
Amy When you tell people, hey, I’m suing state over climate change, I mean, what’s been the reaction?
Madeleine I’ve had a pretty positive reaction. People are kind of surprised, because I tend to be a quieter person, and so they’re like, wow, you’re standing up in this really neat way. So yeah, people have been supportive. They’ve definitely been very curious, because it’s not something that a lot of youth typically spend their time doing.
Amy So Skylar, how did this case, I guess, come about? I mean, I think probably Midwest Environmental Advocates maybe wanted to do something to point out that these statutes may be unconstitutional. Or how did the decision making around getting this lawsuit together kind of come about.
Skylar Yeah, so I will start by saying it was a little bit before my time at MEA, but this case does come out of a history of cases that have been filed by our Children’s Trust in the past, and that is our litigation partner in this lawsuit. And they have brought lawsuits at the federal level in two of their cases, Juliana versus United States, which is probably their most well-known lawsuit. And then Lighthizer v Trump, which was just filed this year. And then they had two successful state cases, one in the state of Montana, called Montana v. Held, and then one in Hawaii against the Hawaii Department of Transportation. And in those two state cases in Held in particular, they challenged a discrete number of statutes that really proliferated fossil fuels in the states. And the state Supreme Court held that those statutes were unconstitutional. And so that case really mirrors what we’re trying to do here in Wisconsin. Um, and so I think like our children’s trust trying to make these things a national movement, um, was looking to Wisconsin and looking to, you know, what statutes can we strike down in order to really push for a renewable energy future that is protective of, you, know, life and liberty and the health of the youth in the state. And these obviously jumped out as something that was really hindering the PSC’s ability to do that.
Amy So when you first hear about these cases, you think, oh, well, you know, this is just not going to work, or how can that be that you can sue on behalf of… Kids who are going to be harmed by climate change, but there are actually states where this has been successful.
Skylar Absolutely.
Amy So what is your thought, do you think, that this could be successful in Wisconsin?
Skylar I think there’s definitely a lot of hope in our office and we feel really good about this lawsuit. I think, you know, the obvious reaction of everyone who’s heard us describe what’s going on here is that it’s absolutely, patently ridiculous that we live in a state where the fossil fuel industry is given such unnecessary benefits. And that renewable energy is hindered in this way. And I think the Wisconsin constitution is unique because even though we don’t have the explicit enumerated right to a stable climate system, article one, section one of our constitution says that we have more inherent rights than just life, liberty, and the pursuit of happiness. And that it’s up to the judicial system to determine what those rights are. And so, you know, a number of judges in the state have said that they’re willing to go further in interpreting what Article 1, Section 1 really means. And we’re hoping that this is going to be one of the first cases where they actually do that.
Amy Madeleine, I know you’re still in high school kind of just getting started with your your life and going out into this world. Sometimes it can feel overwhelming to think about the climate crisis and feel like, you know, there are so many things stacked against us. But what gives you, I guess hope to, you know, as you go out into the world and really start to… Take on some of the big issues like this one?
Madeleine Yeah, I think a big thing for me has just been taking it moment by moment and so recognizing that I can’t do it all but I can do something and so I think being part of this lawsuit has definitely given me a lot of hope. I would also say creating sort of communities around climate advocacy has helped so I’m part of my school Green Club for example which connects me with a lot people my age who are really passionate about fighting. For our earth. And so that has also been super helpful.
Amy You know, this case got a good bit of attention when it was filed. Were you ready for that kind of attention to be associated with a case that’s about climate change?
Madeleine And it was a bigger reaction than I was expecting, if I’m going to be honest. Yeah, I am obviously a youth and I think people my age tend not to pay a ton of attention to lawsuits, but there have been a number of people my age and also adults in my life who have recognized the case, and that’s been a little bit unexpected.
Amy When we talk about statutes, I don’t know exactly when these statutes were passed, but I have seen that these things can happen with different administrations as they come and go. And climate change has been, in the United States at least, kind of attached to a political divide. So it’s very difficult to get action on climate change. Do you think we’re overcoming that? Where people from all… Backgrounds and political beliefs are young people anyway. People, you know, Madeleine, who you hang out with, are saying, you, know, hey, maybe I’m a Republican, maybe I am a Democrat, maybe independent, but climate change is something we all need to get together to do something about.
Madeleine I think there’s a hopeful message and an intent to do that. I don’t think it’s happening in all parts of the country, but I think people also overestimate the extent to which we’re divided. And ultimately at the end of the day, we all just wanna be happy, healthy humans. And I think that’s an incredibly unifying vision.
Amy Skylar, what are the next steps for this lawsuit?
Skylar Yeah, so, as you said, this lawsuit was filed back in August of last year, both the Public Service Commission and the legislature filed motions to dismiss the case in November. We have fully briefed those things, so all of the written materials have been submitted to the court, but we have also requested that the court have a hearing on the motion to dismiss. And this would be our first opportunity to really bring the youth to the courthouse and let them experience the process for the first time, but also to allow the judge to see face-to-face and in person the people who her opinions will be impacting. Um and so we really want the opportunity not only to be able to answer the judges questions about the written materials that we’ve already submitted um but also just to give her the opportunity to meet um the people who are impacted by this lawsuit um so we haven’t heard anything from the judge’s office on that motion yet um so we’re in the position where she will either be deciding to have that oral hearing or she will decide the motions based solely on the written arguments that we’ve already submitted. So we’re just kind of waiting for the court to make that decision at this point.
Amy Comes to an oral hearing, Madeleine, are you ready to get up there and talk to a judge about this? It feels like that’s kind of an intimidating moment, but…
Skylar I don’t think at this point that she is going to be requesting any testimony from the youth plaintiffs.
Amy So, she would just show up in front of the court to…
Skylar Yeah, yes, so it would be mostly oral argument about the written motions that we’ve made, which don’t really require the participation of the youth, but they would be able to appear in the courthouse and actually sit there and hear the arguments on their case and see the judge for the first time. So their participation will hopefully come later in the case once we’re able to actually get to trial. And then their testimony will be very useful to proving our case.
Amy So there’s testimony that’s already been written and submitted from them?
Skylar So not necessarily testimony. Typically in cases like this, you have to prove what’s called standing, which is basically just that you are being harmed and you have the right to bring this lawsuit. So each of the youth submitted, you know, a short like two page story about how climate change has impacted them thus far in their lives. But as we get into factual development, which is going to happen once we get past the motion to dismiss phase. Once we start developing those facts, their stories are going to come into play, as well as testimony from medical experts and experts in the climate field and things of that nature. So we’re not at the factual phase yet, we’re arguing solely on the law.
Amy So Madeleine, you had to submit kind of a couple of pages about how climate change has affected you so far. Is it the kind of thing where maybe some days you really think a lot about climate change and other days you try not to think about it so much or what was, what in your opinion was the compelling part of your testimony or not testimony, your statement?
Madeleine Yeah so my statement was pretty short because it’s all 15 of us submitted one and so it was all compiled into one document but it was mainly focused on the ways that climate change has already harmed me thus far and so I mean it’s the law, it’s pretty succinct but it focused mostly on the effects that my asthma has been having on my health and my access to life liberty and the pursuit of happiness.
Amy I didn’t realize you had asthma. I think one of the big impacts of climate change that we’ve felt here in Wisconsin lately has been the wildfire smoke the past couple of summers. In fact, a few times we had the worst air quality in the country and at some moments in the world. How did that impact you as you were living here with that?
Madeleine It, so it severely limited the amount of time I was able to spend outside. Being outside is a really big source of happiness for me. And I spend a lot of time doing it, especially in summer. But during the peak of those wildfire smoke times, I guess I really wasn’t able to go outside at all if I wanted to stay healthy.
Amy Yeah, and the summertime is when, you know, everybody wants to be outside in Wisconsin. It’s our little bit of chance to be out and get out in the sunshine and be warm. I want to ask real quick about the PSE, and I, maybe this is naive, but they filed a motion to dismiss. Do they really have to do that? I mean, this is a statute. Can the PSC ever just say, you now what? Maybe the statute is wrong, or… Is there ever a moment when an agency cannot push back against a lawsuit?
Skylar No, there are there are ways in which to do that. I think in the vast majority of these cases, you see that these agencies really have to protect their authority under the law as it currently stands. The unique thing in Wisconsin is that whenever there is a constitutional challenge to a statute, the legislature can decide to intervene in a case. So we, you know, filed… Our case against the legislature in the first instance, but if we hadn’t, if we hadn’t made that decision, the legislature likely would have gotten involved and would have argued for the constitutionality of these statutes, you know, just on their face. So I think it’s really interesting to see the way that that hinders agencies in Wisconsin in the way that it wouldn’t in other states, because the legislature and other states doesn’t have that kind of authority. So for that, you know, the PSC would recognize there’s no benefit to us sitting on the sidelines and not doing anything about this lawsuit because the legislature would then intervene and it might impact how the legislature gives them authority or impacts their, you know, their board, the PCC commissioners in the future. So I think it’s really cautionary based on the amount of authority that the Wisconsin legislature has given itself. Over lawsuits like this in the state.
Amy Yes, and it has intervened in a number of lawsuits, from what I recall, in an effort to, I don’t know, I didn’t want to use the word strong arm, but certainly it’s inserted itself into a lot of important cases. So, okay, and so. I think this has still got a long way as it plays out, but please keep us updated, especially if that hearing happens, you know, and Madeleine, you may not say anything, but you might get your day in court anyway to at least be present. And so are you finding this whole process at least somewhat exciting?
Madeleine Yeah. I’ve been learning a lot about the… ins and outs of the legal system, and our attorneys have been super helpful in sort of walking us through that process because it’s the first time for a lot of plaintiffs, if not all of them.
Amy Well, thank you both so much for taking the time to talk with me about this case. I think it’s really exciting. And also, when we look at those other cases that turned out successfully, I think there’s a lot of people hoping that this one does as well.
Skylar Thank you. We feel really hopeful and excited to be having these conversations and to get the feedback that we’re getting. So thank you for that.
Amy And thank you for listening to The Defender. If you have something you want me to talk about or a comment about the show, send me an email, podcast at cleanwisconsin.org and remember to like and review The Defender on your favorite podcast app. It helps other people find us. I’m Amy Barrilleaux, talk to you later.
