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Law professor writes brief for indigenous nations in lawsuit on climate change

Tuesday, December 03, 2013

LAWRENCE — Climate change has negatively affected people around the world, but it has hit native and indigenous populations especially hard, driving them from their homes, altering their ways of life and threatening their survival. A University of Kansas law professor has submitted an amicus brief to one of the nation’s top courts on behalf of several native organizations. In the underlying litigation, children are, in essence, suing the federal government for failure to take action on climate change.

On Nov. 12, Elizabeth Kronk Warner, associate professor of law and director of the Tribal Law and Government Center at the School of Law, who wrote the brief, and Michael Willis, counsel of record, submitted an amici curiae brief to the U.S. Court of Appeals for the District of Columbia Circuit. Filed on behalf of the National Congress of American Indians, The Alaska Inter-Tribal Council, Forgotten People Inc., National Native American Law Student Association and several other organizations and law professors, the brief chronicles the extreme impacts of climate change on native nations. The brief also discusses how federal law applies different to federally recognized tribes.

The underlying action seeks to hold the federal government responsible for failure to take meaningful measures on climate change. This legal action is the first at a federal court to argue that the federal government has not protected the public trust by failing to protect natural resources and air quality. The U.S. Supreme Court has established that the Environmental Protection Agency can regulate greenhouse gases, and the agency began efforts to start regulating such gases several years ago. Because of the EPA’s efforts, the U.S. Supreme Court held that litigants could not sue private parties under federal public nuisance common law in 2011.

“This is a friend of the court brief to show how people in indigenous nations are disproportionately affected by climate change even though they contribute little, if any, to the problem,” Kronk Warner said. “We’re trying to find a way to get a viable climate change claim in front of the federal courts.”

The brief has been submitted, but oral arguments have not yet been scheduled. Once the arguments are made, the court will make a ruling. If the brief is unsuccessful, the parties will need to decide whether they want to appeal the ruling to the Supreme Court. If it is successful, the defendants will have the opportunity to do the same. Kronk Warner said she hopes the court will make a decision by the end of 2014.

She compares the process to the suits brought against big tobacco in previous decades. It took many years of legal arguments before tobacco companies were found liable for the negative health effects their products caused and were required to pay compensation.

Kronk Warner was approached by Our Childrens Trust to write the brief. An expert in federal Indian law, tribal law, environment and natural resources and property, she co-edited the book “Climate Change and Indigenous Peoples: The Search for Legal Remedies” with Randall Abate, professor of law at Florida A&M University. The book was released earlier this year. 

The book examines how climate change has affected native populations around the world. In the United States, native nations in Alaska have been especially hard hit as rising temperatures have melted permafrost, endangered animals that tribes depend on to subsist, flooded villages and hindered tradition and customs. The petitioners in the case are all children, and the brief shares stories of young people who have lived with the reality of climate change.

“These are children who have had to move from their homes due to climate change,” Kronk Warner said. “It’s very compelling to see how this problem has changed their lives.”

Climate change can elicit strong emotions and is often used in political debate, but Kronk Warner said she got involved to both serve indigenous populations and the legal community.

“I don’t see this as a political issue,” she said. “The role we play as advocates is to find a way to express the commonly held view that climate change is negatively affecting people's lives in the courts. It’s been very rewarding to take part in a case that has the potential to affect the law in a positive way.”

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