Harvard divestment lawsuit fails a second time

CHARLIE MAHONEY/THE NEW YORK TIMES/FILE 2016

For the second time, seven current and former Harvard University students have lost a court battle to force the university to divest its holdings in the coal, gas, and oil industries because of their role in climate change.

In a unanimous ruling, the Massachusetts Appeals Court applauded the sincerity, diligence, and power of the arguments made in a lawsuit by the students and alumni who call themselves the Harvard Climate Justice Coalition. But the court concluded they had no legal standing to force the Harvard Corporation, a school governing board, to adopt their views.

Members of the group had sought “special standing’’ under state law governing nonprofit organizations like the Harvard Corporation. The plaintiffs cited the fact that they attended the school and therefore benefited personally from the income generated by the investments in the industries.

The court ruled, however, that the students “fail[ed] to show 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.’’

Judge Elspeth B. Cypher, writing for the court, ruled that because “the students failed to demonstrate special standing, count one fails to state a claim upon which relief may be granted, and was properly dismissed.’’

Cypher agreed with the lower court judge who heard the case, Suffolk Superior Court Judge Paul D. Wilson, who rejected the students’ arguments. The court found that the students’ contentions that “fossil fuel investments have a chilling effect on academic freedom and have other negative impacts on their education at the university . . . were too speculative, too conclusory, and not sufficiently personal to establish standing.’’

The panel also dismissed a second prong of the legal argument advanced by the students — that the Harvard endowment should be forced to immediately sell the holdings to protect “future generations’’ from environmental harm they attribute to the fossil fuel industry.

Cypher wrote that no one can file a civil lawsuit, also known as a tort, on behalf of “future generations.’’

“No court in any jurisdiction has ever recognized that tort, and in any event creating a new tort in the Commonwealth is the function of the Supreme Judicial Court or the Legislature,’’ Cypher wrote.

In a statement provided by cofounder Joseph “Ted” Hamilton, the student group called the ruling a “disappointing judicial failure to engage with the urgent problems of climate change and climate justice.”

“Our courts must defend the public interest in a healthy climate and recognize the duty of investors and governments to curtail carbon emissions,” the statement said.

The students also wrote that “our case has argued from the beginning, powerful institutions like Harvard University have a moral and legal duty to end their financial support of the fossil fuel industry.’’ The students said they do not plan to appeal Thursday’s ruling.

Harvard announced in October 2013 that Harvard had no plans to divest, saying the school’s endowment is intended “to advance academic aims, not to serve other purposes, however worthy.’’

In a statement Thursday, the college praised the ruling.

“We agree that climate change poses a serious threat to our planet, but respectfully disagree with the students who brought the lawsuit on the means by which a university should confront it,’’ it said in a statement.