“No Short-Term Fix for California Methane Leak“; “How Tap Water Became Toxic in Flint, Michigan“; “Seas Are Rising at Fastest Rate in Last 28 Centuries.” If these recent headlines are any indication, environmental woes are mounting despite decades of attempts to reverse ecological devastation. A proliferation of environmental statutes, regulations and advocacy campaigns has fallen short of securing a clean and healthy environment for all.
Environmental issues, to be fair, are complex and difficult to remedy effectively. In one sense, they are a symptom of an underlying conflict of a continuously growing global economy pushing up against physical planetary boundaries. Endless pursuit of profit and economic growth has driven us to the brink of ecosystem collapse, whereby various interdependent components of the biosphere – oceans, atmosphere, wetlands, forests etc. – begin to break down simultaneously. Trying to remedy one of these symptoms – passing a law to ban logging in old-growth forests, for example – is almost pointless given the scale and scope of the current ecological crisis.
Ecological crises have reached systemic levels, such that incremental, isolated regulatory approaches are no longer valid.
Indeed, we’ve already tried this approach, creating laws addressing a plethora of environmental issues from endangered species and wilderness protection to air and water pollution. While there have been some improvements, the overall outcome is quite bleak. The United States ranks well below other wealthy nations in terms of environmental protection. As James Gustave Speth has pointed out, a third of our plant and animal species are threatened with extinction; half of our wetlands and 90 percent of our old-growth forests have been destroyed; and nearly half of rivers, streams and lakes fail to meet the quality standard set by law.
These environmental indicators pointing to colossal ecological decline suggest, as legal scholar Mary Christina Wood surmises, that modern environmental law has largely been a failure. Ecological crises have reached systemic levels, such that incremental, isolated regulatory approaches are no longer valid given the scale of the problem. As Gus Speth writes in the journal Solutions, “Environmentalists and other progressives have gone down the path of incremental reform for decades, and the results of that experiment are in. The roots of our environmental and social problems are deeply systemic and thus require transformational change.” Speth insists a new system of political economy is needed; Wood argues for a new legal framework based on the ancient principle of the public trust doctrine. Either way, it is clear that environmental problems cannot be fixed using traditional legal or political tools. Deeper, structural changes are necessary – ones that address root causes of ecological ills rather than merely treat the symptoms.
Fortunately, there are some interesting, innovative ideas emerging to shift the legal paradigm and assert the rights of communities, nature and future generations above the rights of corporations and special interests.
The Public Trust Principle
In her book, Nature’s Trust: Environmental Law for a New Ecological Age, Wood calls for a paradigm shift in environmental law to a “nature’s trust” framework invoking the public trust doctrine. Under this ancient legal concept, governments are trustees with a fiduciary obligation to safeguard natural resources on behalf of public beneficiaries, including present and future generations. As Wood points out, the public trust is an inherent element of sovereignty, an unalienable right to sustaining natural resources essential to human survival. Furthermore, she argues, “it provides a fiduciary frame that gives meaning to environmental law and invigorates it – unseating corruptible political discretion and installing in its place firm property-based obligations to manage natural resources for the long-term security of citizens.”
As 15-year-old Xiuhtezcatl Martinez explained, “What’s at stake right now is the existence of my generation.”
Atmospheric trust litigation – youth-led lawsuits against federal and state governments failing to act effectively on climate change – is one legal approach attempting to assert this frame. Starting in 2011, youth plaintiffs brought legal action against all 50 states and the federal government for depriving their constitutional rights by continuing to allow fossil fuel exploitation. The resulting destabilization of the climate threatens the life and futures of young people and generations to come.
As 15-year-old Xiuhtezcatl Martinez, one of the youth plaintiffs, explained in speaking at the UN General Assembly on Climate Change, “What’s at stake right now is the existence of my generation.” These suits are thus an attempt to hold governments legally accountable for their inaction or inadequate policies to reduce carbon emissions in accordance with sound science. Plaintiffs are calling for a court-ordered, science-based national climate recovery plan. Oral arguments in the federal case are slated for March 9, 2016.
Youth-led litigation based on the public trust is a promising legal approach because it empowers courts to deliver intergenerational justice in protecting young people’s right to enjoy “earth’s endowment,” including a stable and hospitable climate. In the absence of urgent government action addressing climate change, this approach, according to Wood, “breaks the mould by inviting judicial innovation in defining and enforcing carbon emissions reduction at the domestic level, worldwide.” Traditional common law claims like public nuisance have proved ineffective in forcing emissions reductions, as the 2011 Supreme Court decision in American Electric Power Co. v. Connecticut indicates. As Professor Douglas A. Kysar puts it, “Tort law seems fundamentally ill-equipped to address the causes and impacts of climate change.” However, he offers an affirmative response in asking, “Might tort law itself be impacted by climate change?” Given the unprecedented existential threat posed by climate change, it seems necessary for the law to evolve and for the judiciary to adopt new, morally infused approaches in deciding climate cases.
From Community Rights to Civil Disobedience
Another attempt at addressing the failure of the current legal/regulatory system is emerging at the local level. The community rights movement shifts the legal framework to assert the rights of communities and nature above the rights of corporations and special interests. Pioneered by the Community Environmental Legal Defense Fund (CELDF), this approach involves communities enacting “community bills of rights” – ordinances or other resolutions claiming their right to local self-governance with a commitment to safeguarding the health of residents and the environment.
“The community rights movement is building across the United States, with communities and state community rights networks partnering with CELDF to advance fundamental democratic and environmental rights,” said Mari Margil, associate director at CELDF. It is an effort to seize control from federal and state regulators and their corporate allies, and stop projects like pipelines, fracking and commercial development that directly harm local communities.
Sometimes it takes nonviolent direct action to disrupt business as usual and demand justice.
According to CELDF, “nearly 200 municipalities across the U.S. have enacted CELDF-drafted Community Rights laws which ban practices – including fracking, factory farming, sewage sludging of farmland, and water privatization – that violate the rights of people, communities and nature.” Statewide community rights groups have drafted state constitutional amendments to codify into law communities’ rights to local self-governance and sustainability. “Communities are joining together within and across states, working with CELDF to advance systemic change – recognizing our existing system of law and governance as inherently undemocratic and unsustainable,” Margil said. Elevating rights of communities above rights of corporations must be part of the legal strategy working toward a cleaner, greener, more equitable society.
Amending state constitutions, winning atmospheric trust litigation and effectually disrupting the legal status quo is no easy task. So long as anthropocentric, extractive, free-market fundamentalism remains the dominant worldview, governments will continue to capitulate to moneyed interests while toxins contaminate drinking water, species disappear and the planet heats up despite elaborate statutory protections. Traditional activist tools like letter writing, petition signing, lobbying and litigating may not be enough to slow the acceleration toward climate calamity. Sometimes it takes nonviolent direct action to disrupt business as usual and demand justice.
Civil disobedience is not a new tactic. From the Greensboro lunch counter sit-ins to South Africa’s anti-apartheid campaign, numerous historical examples illustrate the importance of protest in pushing for social change. In the environmental context, activists have staged tree sit-ins, blockaded pipelines and power plants, and marched by the thousands in the streets across the globe. And the wave of resistance is only increasing.
Systemic change will be extremely challenging to accomplish. But it is necessary.
Recently, several groups of protesters – the “Delta 5” in Washington State, the “Montrose 9” in upstate New York and the “Heathrow 13” in the UK – went before courts for their unlawful actions of blockading an oil train, blockading a pipeline construction site and trespassing into a security-restricted area of an aerodrome, respectively. These groups cited the necessity of their acts in fighting and preventing harm from the grave threat of climate change. This so-called necessity defense is beginning to test the judiciary’s will to forgo straightforward, strict sentencing and bend toward climate justice.
According to the Climate Disobedience Center, “the basic idea behind the defense … is that the impacts of climate change are so serious that breaking the law is necessary to avert them. By admitting their conduct and asking a judge or jury to find them not guilty by reason of necessity, activists draw attention to injustice and the failure of the law to protect the planet.” This is another way of breaking the mold and another key piece of a system-changing legal strategy.
Rising to the Challenge
The time frame in which we can act to prevent the worst impacts of climate change is getting smaller and smaller. It is simply too late for conventional fixes and incremental policy reform. We have to think big and be willing to challenge the current power structure that legalizes environmental destruction and oppresses ordinary people to the benefit of the wealthy elite. As Naomi Klein writes in her groundbreaking book, This Changes Everything, “only mass social movements can save us now.” Systemic change – a paradigm shift in our legal, political and economic operation – will be extremely challenging to accomplish. But it is necessary. Such a societal transformation will require an unprecedented citizen uprising involving massive public protests and some civil disobedience. It will require people asserting their power, reclaiming their democracy and demanding their rights and interests be protected over private profits.
Complacency is not an option. The challenge will be in convincing enough people that real, revolutionary change is possible. With much of the media under corporate control, it will also be challenging to communicate the vision for an alternative model of political economy, and highlight successful initiatives implementing that vision. Ultimately, it comes down to an individual awakening – realizing that we are each a citizen of planet Earth and that our collective survival as a species depends upon sustaining the planet’s life support systems. We must alter our egocentric, competitive, consumerist mindset and start thinking creatively, compassionately and collectively. In the words of Dr. Martin Luther King Jr., “First, we are challenged to rise above the narrow confines of our individualistic concerns to the broader concerns of all humanity.”