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.
The National Institute for Water and Atmospheric Research (NIWA)