The federal government argues for dismissal of a lawsuit that claims its inaction on climate change violates the right to be let alone in nature. Photo credit: Luis Sinco/Los Angeles Times via Getty Images

By Kaitlin Sullivan

The Department of Justice filed a motion to dismiss a groundbreaking climate case brought last October by two groups that claim the federal government is violating their Constitutional rights by contributing to climate change.

The lawsuit, filed in U.S. District Court in Oregon by the Animal Legal Defense Fund and Seeding Sovereignty, an indigenous and environmental justice organization, named the Department of Interior, the Department of Agriculture and other federal agencies as defendants. It claims the government’s inaction on climate change, its support of the fossil fuel industry and other policies is destroying wilderness areas, violating the right to be left alone guaranteed under the First, Fifth and Ninth amendments.

The government’s response said the lawsuit contains a too-narrow interpretation of those rights and would require inventing entirely new Constitutional rights. The DOJ also asserted that because the right to wilderness does not involve a person’s body or a relationship between two people, it is therefore not a fundamental privacy right that warrants protection by the government.

The DOJ said that no court has ever recognized a fundamental right to wilderness and that numerous courts have thrown out such cases. “There is no First Amendment right not to associate with the rest of humanity and to instead be ‘free from human influence in wilderness,'” the motion said.  

The right to privacy, or to be let alone, however, has been interpreted by the Supreme Court to include the right to be free from intrusion at home, free from police surveillance and the right to terminate a pregnancy.

“It pops up in different ways,” said Carter Dillard, senior policy advisor for the Animal Legal Defense Fund and a lawyer on the case. “What you have is a spectrum of privacy. The right to literally be let alone and that experience is what our plaintiffs are losing because of the federal government.”

Dillard argues that the concept of wilderness as being let alone is clear in  The Wilderness Act, and Supreme Court precedent supports it.

“As a result of national policies that promote, subsidize, and develop carbon-intensive industries, the Government bears a higher degree of responsibility than any other individual, entity, or country for exposing Plaintiffs to the dangerous conditions on federal lands caused by climate change,” the complaint says, placing blame on the government’s sale of coal and oil leases on public land, deforestation and the subsidization of animal agriculture and monoculture.

“The government protects wilderness over small cases of encroachment, such as ATVs, but then their lawyers are going to court to say the things that are destroying wilderness at an unprecedented pace are not a problem,” said Dillard. “They’re talking out of both sides of their mouth.”

The DOJ argued that the complaint’s definition of wilderness is based on theoretical concepts and fails to identify specific places where the plaintiffs are being denied access.

The government motion also said that the requested right is “divorced from any of the rights that the Supreme Court has recognized as fundamental,” such as marriage, family and procreation, which “involve private relationships and choices that have little to no impact on the rights and interests of the public at large, and which can be protected simply by the government refraining from interference.”

Sarah Bexell, director of humane education at the University of Denver and a plaintiff in the case, argues that access to nature is important for healthy child development.

“As they’re distanced from wilderness, those children may care less about it,” said Bexell. “These children grow up and become policy makers and begin to make their own life decisions––such as buying an SUV or biking to work––that could be detrimental to their both their own health and global health.”

As an alternative to dismissing the lawsuit, the DOJ requested a stay of this case pending the Ninth Circuit Court of Appeals’ resolution of the landmark youth-led climate case Juliana v. United States, in which 21 young people claim the government is violating their right to a safe climate. The DOJ said the claims in that case, are closely related to the wilderness case. Dillard argued that the two cases are fundamentally different and therefore should proceed independently.

The government agreed to give the plaintiffs until July 1 to file their response, though a court order has yet to be issued. The DOJ did not respond to a request for comment.

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