You are suggesting that we file suit against the government? That’s the question Bill McKibben puts to James Hansen in the course of a recent interview. “Precisely,” replies Hansen.
“Begging Congress to be responsible does not work. Exhorting the president to be Churchillian does not work.
“On the contrary, Congress has passed laws and the executive branch has defined and carried out policies that trample on the future of young people. Consider the subsidies of fossil fuels and the permission that is given to the fossil fuel industry to use the atmosphere as an open sewer without charge. We cannot let the government pretend that it does not realize the consequences of its actions.”
He then goes on to speak of a basis for suing the government as described by Law Professor Mary Wood of the University of Oregon and others.
“She shows that the Constitution implies a fiduciary responsibility of governments to protect the rights of the young and the unborn. She describes what she calls atmospheric trust litigation. Suits could and should be brought against not only the federal government but also state governments, and perhaps lower levels—and in other nations as well as the United States.”
Earlier in the interview he was talking to McKibben about civil disobedience, and explaining that he prefers the term peaceful civil resistance. Hansen himself has taken part in acts of civil resistance, and is still awaiting trial on one of the charges. It was in that context that he recalls that it was action by the US courts which finally signalled an end to segregation. There were massive acts of non-violent civil resistance at the time, which helped to get the courts involved. It was the courts which opened the door to real progress because they had the ability to order desegregation under the equal protection provision of the Constitution. Eventually lawmakers became involved. He connects that time with the current situation:
“Courts ordered desegregation to achieve civil rights of minorities. Similarly, if a court finds that a government is failing in its obligations to young people, the court can require that government to submit plans for how it will reduce its emissions. Courts have authority to require governments to report back at intervals on the success of their actions and to define corrective actions if they fail to achieve specified reduction.”
Hansen considers that the legislative and executive branches of US government are not going to solve the problem on their own. He used to think that the problem was that governments did not understand what the science was telling us and its urgency.
“But I learned in my interactions with governments in several nations that the governments are not ignorant of the climate problem, they are not unaware of the need to move on promptly to clean energies. Yet at most they set goals and take baby steps because they are under the strong influence of fossil fuel interests. There are too many people profiting from our addiction to fossil fuels—and they have a huge influence on our governments.”
The courts, the judiciary branch of government, Hansen considers to be less influenced by fossil fuel money than the legislative and executive branches, and should be able to respond to the climate issue as they did in the past to such issues as segregation.
“Human-made climate change now raises a moral issue as momentous as any that the courts have considered in the past. Today’s adults are reaping the benefits of burning fossil fuels while leaving the consequences to be borne by young people and future generations. Are my grandchildren, and other young people, included in the category of ‘any person’ and thus deserving equal protection of the laws? A positive answer, I believe, is obvious.”
(‘Any person’ refers to the Fourteenth Amendment of the Constitution which Hansen had previously quoted: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)
If suits are brought, and the courts are willing to respond, Hansen recognises the need for definition of the emissions trajectory required to avoid dangerous human-made climate change. He reports that he is currently working with his colleagues to define the necessary emissions scenario. Their paper will be titled “Sophie, Connor, Jake and Lauren versus Obama and the United States Congress.” (The names are those of his grandchildren.) Although the task is not yet completed he says it is clear that the requirement will be an annual emissions reduction of several percent per year.
“Wow,” says McKibben. “Let’s say the court instructs the government to reduce emissions so as to yield a safe level of greenhouse gases, which would mean getting carbon dioxide back below 350 ppm. Is it practical to achieve such a scenario?”
Absolutely, in Hansen’s view, but only if the government is honest and produces policies which result in actual reductions in fossil fuel emissions, not phony offsets. In the interview he goes on to elaborate his view of the carbon taxes by which this would be achieved. But we won’t follow him further in this post, which was intended to highlight the judicial recourse which he, along with others, is obviously now considering. The interview also includes at an earlier stage reflections on the science which are worth attention, and I intend taking them up in a succeeding post.
What hope it is realistic to attach to recourse to the courts in the US, those of us who live outside the US can probably only wonder. But we can certainly wish it might prove to be a fruitful approach if it is employed. The lack of cohesion in US policy is utterly dismaying for those who realise the escalating danger in which the world stands from human-caused global warming.
The interview with McKibben is reproduced as an added section to the new paperback edition of Hansen’s book Storms of My Grandchildren (2009 edition reviewed on Hot Topic). The royalties from all sales of the book go to the organization 350.org which McKibben helped found and which Hansen considers has demonstrated the most effective and responsible leadership in the public struggle for climate justice.
I won’t hold my breath.
Interesting post.
Perhaps the locals ought to do the same and seek to join CSC’s suit against NIWA as an interested party in the hope that some sanity can be injected into the proceedings?
IIRC one of the conservation groups intends to do just that, if the case were ever to come to court — which now seems very unlikely.
We have rights for the unborn, and fanatics willing to kill in order to protect those rights. How about the rights for those yet to be conceived? Who are protecting/lobbying on behalf of those rights?
Tony, the unborn in the context of this post means the generations to come. Mary Wood writes that “governments hold natural resources in trust for their citizens and bear the fiduciary obligation to protect such resources for future generations.”
Thanks Bryan. The big issue is the legal obligation that governments have to prevent irreparably damaging the planet, say in order to prevent further positive feedbacks. As I understand it, there are no current laws, and that new laws would have to be passed. If no such laws are passed, then we are reliant on the altruistic sense of society. However, to pass laws requires the altruistic sense of enough individuals. The latter will be what is required as otherwise we will have plenty of Joe Fones who will be thinking they are doing the planet a favour by adding more CO2 fertiliser into the atmosphere.
Greenpeace lodged notices with a number of large emitters a few months back putting them on notice that legal action might be possible in the future. http://www.greenpeace.org/new-zealand/en/press/greenhouse-polluters-on-notice/
The common law of nuisance – developed over hundred of years in England to resolve neighbour issues, often gets ‘updated’ as new issues arise. For example, the glare of reflected sunlight from a neighbouring building has been held to be a nuisance. Interference in TV reception might also in certain circumstances be a nuisance.
A fiduciary action might also be possible as has been mentioned. Lots of discussion about that in NZ cases discussing Maori issues and the duties the NZ govt owes to groups within its ‘care’.
The problem with such actions in NZ would be the existing laws. Regrettably, the very weak ETS would be cited as evidence that government is already taking care of this difficult issue and the courts ought not to intervene. There has been a suggestion of that in previous cases under the RMA where climate change issues have been raised.
Weirdly, the comprehensive approach to environment law in NZ may give the government ‘protection’ against broad brush legal action. The law in Australia and the US is more open in this respect.
I would be looking hard at the ETS and the Crown Minerals Act. Any ministerial decisions to proceed with new coal or lignite developments ought to take account of the ETS and in particular future commitment periods. Logically, that must mean that they are uneconomic as well as being environmentally deadly. The Parliamentary Commissioner for the Environment has provided some of the factual background for such a challenge in her recent report.
Thanks Tom. Interesting.
Tom,
The idea that GHGs fall into the category of nuisance I believe falls well short of the potential seriousness of the issue. We are not talking about some smokey exhaust fumes that some unlucky person has had the misfortune to breathe walking down the street. We are talking of some serious consequences that threaten our very ability to survive what are likely to become very hostile conditions.
With respect to GHGs, it might be interesting to see a battle drawn out in the courts, particularly when there is historical evidence that positive feedbacks have in the past led to vast extinctions of species.
These are the issues that would be good to fight out in the courts:
1) Are positive feedbacks likely to occur if we do little or nothing?
2) Are positive feedbacks if allowed to proceed a serious threat?
3) Does the ETS and other minimal policy initiatives address and prevent positive feedbacks?
The other point that needs to be stressed is that we don’t have much time. If the answer to the first two questions is yes and the third no then we need to act now, or the narrow window of opportunity to change our fate is lost.
Although, in principle the courts should be able to help. I don’t have much faith in any significant outcome. A case like that could take years to be resolved after a series of appeals. The best that could come from it is the publicity to the cause of climate change.
Thanks for the information on the Greenpeace action, Tom. I’d either missed that or forgotten it. I mentioned lack of cohesion in US policy, but it is equally present in NZ government practice. Gerry Brownlee’s bland assertion that the exploitation of the Southland lignite will be entirely in line with the intention of the ETS beggars belief, unless the ETS is a cynical smokescreen behind which business as usual can proceed. In my letter to Brownlee I spoke of his obligation to protect our descendants from the terrifying effects of climate change as far outweighing his responsibility for present economic development, but that was an appeal to what I think of as common morality. It would be nice to think it could be backed by law but that’s obviously difficult territory.
Regrettably, the very weak ETS would be cited as evidence that government is already taking care of this difficult issue and the courts ought not to intervene.
That’s where the paper Hansen, and colleagues, are working on is going to become so useful. They can prove that it’s simply “Greenwash” and won’t achieve the necessary reductions to stave off catastrophe.
I think this is one area where climate scientists should be weighing in.
Tony
Dont be misled by the word nuisance. As a legal term it covers a huge range of possibilities. For example some of the legal action taken on the Gulf of Mexico spill will probably make use of the tort of nuisance. Common law actions such as this are useful precisely because small cases can have huge consequences. Product liability – the whole idea that manufacturers have a duty to the end customer, even if there is no direct contract between them – is largely built off the back of a House of Lords case about a snail left in a ginger beer bottle. http://en.wikipedia.org/wiki/Donoghue_v_Stevenson
A small case, perhaps involving an insurance contract for weather losses or similar, may have large ramifications.
On the issue of the ETS etc providing a degree of cover for government inaction, the fruitful ground might lie in arguing that the current schemes operate on longer time frames and were never intended to deal with the extreme scenarios which are now playing out before out eyes.
We need a legal symposium on this issue.
Thanks Tom.
A legal symposium sounds like a good idea. My main concern is that the ETS and other meek initiatives are being touted as a solution to the problem, when clearly they are nowhere near it. We cannot simply rely on the good will of people. It really requires court judge(s) to examine the threats closely and then to issue a directive on the basis of issues and expert testimony placed before them and there is plenty to draw from there. Policies based on politicial expedience are NOT a solution.
I might just add one more comment to this thread. The Scopes monkey trial in 1925 was a classic example of a court case that transformed the entire education system. A school teacher was accused of teaching evolution in schools. He was subsequently found guilty and fined 100 dollars. However, while the case was lost the cause was a a huge victory. The case notoriety, the publicity, the arguments that were played out in court made it a historic case, that transformed the way people think.
Nowadays Creationism is hardly ever taught in schools, and only the most ardent fanatic questions evolution. “Inherit the Wind” is a superb portrayal of the proceedings. Bryan Lleyland would have to be NZs modern day equivalent of William Jennings Bryan, with similar capacity to shun the truth and immerse himself in misconceptions and distorted interpretations of key findings.
The moral of the story is that the battle that changed humanity began in a court room. The odds against Scopes seemed overwhelmingly stacked against him particularly as the judge and the jury were all heavily prejudiced against the possibility that we and the chimpanzee might have an ancestor in common.
“Inherit the Wind” is a great play as is the 1960 film. Unfortunately, the Scopes trial didn’t transform an entire education system. Just up the road from Dayton, Tennessee where the trial took place the Creation Museum opened in 2007 and many high school textbooks in the USA fail to make any mention of evolution.
Solutions to AGW will not be found in courtrooms.
It’s a shame that many climate folks still think of Hansen as ‘just another guy to write about’, instead of actively helping him out, by providing him with money, manpower, gadgets, tips, etc.
— frank