On June 7, 2016, the Appeals Court heard oral argument for Harvard Climate Justice Coalition v. President and Fellows of Harvard College (AC 15-P-0905). Harvard Climate Justice Coalition, an unincorporated association of students at Harvard University (“Students”), appealed from a Superior Court judgment dismissing their action for a permanent injunction requiring the President and Fellows of Harvard College and Harvard Management Company, Inc. (the company that manages the endowment funds) (collectively referred to as “Harvard”) to divest the University’s endowment of investments in fossil fuel companies. The Students allege that these investments contribute to climate changes which adversely impacts their education and will adversely impact the University’s physical campus in the future. The Students claim that “the harms of global warming resulting from investments in fossil fuel companies constitute mismanagement of the charitable funds in the university’s endowment.”  The Students also attempt to assert the rights of “[f]uture [g]enerations” to be free of what the Students refer to as the “[a]bnormally [d]angerous [a]ctivities” of those companies, and proposed a new tort of “[i]ntentional [i]nvestment in [a]bnormally [d]angerous [a]ctivities.” Both the Appeals Court and Superior Court admired the Students’ fervent and articulate advocacy, but nonetheless, the Courts are unable to legally grant the relief the Students seek.

The Students claim that the “burning of fossil fuels results in the emission of greenhouse gases that become trapped in the atmosphere . . . [and] accumulate . . . [resulting in] climate change[, which causes] physical changes to the Earth’s ecosystems” and results in “deleterious geopolitical, economic, and social consequences.” The Students advocate that Harvard’s investments in fossil fuel companies breach Harvard’s fiduciary and charitable duties to uphold the University’s “special obligation and accountability to the future, to the long view needed to anticipate and alter the trajectory and impact of climate change.” The Students want the Court to order Harvard to immediately sell its direct holdings in fossil fuel companies and to begin divesting its indirect holdings in those companies. Only on rare occasions, however, are those other than the attorney general permitted to challenge the management of charitable funds. The Students cannot demonstrate “that they have been accorded a personal right in the management or administration of Harvard’s endowment that is individual to them or distinct from the student body or public at large.” The Students also cannot show that the investments had impacts that interfered with their personal rights. The Students therefore do not have standing to bring these claims before the Court.

The Students also attempt to “assert the rights of future generations to be free of what they call ‘[i]ntentional  [i]nvestment in [a]bnormally [d]angerous [a]ctivities,’ referring to that count as a tort claim.” This type of legal action has not been recognized by any court in any jurisdiction. Further, the Students did not provide any recognized legal principle to support “their unilateral assertion to represent the interests of future generations.” “[I]f the individual Students may not maintain the action on their own behalf, they may not seek relief on behalf of a class.” The Appeals Court therefore agreed with the decision of the Superior Court to dismiss the lawsuit brought by the Students.