Friends,
Join
us for the annual Interdependence Day visit to the National Security Agency,
Fort Meade, Maryland from 11 AM to noon on Wednesday, July 4. We are
meeting at 10 AM at the Gallagher Mansion, and can provide rides. We will
remember Reality Winner who is facing a five-year prison sentence for revealing
that the Russian government was trying to rig the 2016 presidential election.
Later
that day, we will have a picnic. RSVP to Max at 410-323-1607 or
mobuszewski2001 at Comcast dot net. Kagiso, Max
A Climate
Constitution in the Courts and the Streets
Jeremy
Brecher
June
5, 2018
Portside
They are using the
U.S. Constitution to bring climate protection into the courthouse. These cases
range from youth demanding their constitutional right to a stable climate to
activists who block fossil fuel pipeline construction and justify their action
as necessary to protect constitutional rights.
While legal action
has contributed to social change in the past, it also is notoriously slow and
uncertain. But action in the streets can accelerate the legal process and
pressure the courts to act. Conversely, courts can establish legal principles
that encourage action in the streets. Can we combine the two to jump start
climate protection?
A constitutional
right
Early in the
21st century environmental University of Oregon law professor Mary Christina
Wood concluded that existing environmental law had become an enabler of the
world’s wild rush to environmental catastrophe. The greenhouse gas [GHG]
emissions that cause catastrophic climate change were actually authorized by
thousands of permits issued annually by the government agencies that are
supposed to protect the environment.
Wood proposed
an alternative legal paradigm based not on the political discretion
of government officials but on their constitutionally-grounded legal duty to
protect the common property rights of the people. Its basis is the ancient
principle known in American law as the public trust doctrine.
Under the public
trust doctrine governments have a constitutional responsibility to protect
essential natural resources. Wood argued that the earth’s climate was part of
an “atmospheric public trust” that governments had no right either to destroy
or to permit others to destroy.
Environmental
lawyer Julia Olson organized the non-profit Our Children’s Trust (OCT) to take
that theory to court. In 2011, it launched a legal campaign in 50 states and
Federal court arguing that under the public trust doctrine, government action
causing global warming violated the rights of the plaintiffs – young people and
their posterity. The cases were derided by defendants as nothing but “a child’s
wish for a better world.” But there are currently five state cases and a
federal case, Juliana vs. U.S., moving through the U.S. courts,
multiple related actions in other nation’s courts, and several actions working
their way through state administrative rule-making procedures. In addition to
constitutional and public trust claims, several of the cases also argue that current
GHG emissions discriminate against young people and future generations, since
they will get little benefit from current energy policy but will have to pay a
terrible price for it in future climate change.
Two days after the
election of Donald Trump as President, 21 youth plaintiffs won a court ruling
that could become a critical weapon in the struggle against climate change. In
the *Juliana*case, Judge Ann Aiken of the federal district court in Oregon
ruled that “the right to a climate system capable of sustaining human life is
fundamental to a free and ordered society.” A stable climate system is quite
literally the foundation of society, “without which there would be neither
civilization nor progress.”
Judge Aiken did
not rule on the claim of inter-generational discrimination -- but she did find
that *everybody*has a right to a stable climate. She framed the fundamental
right at issue as “the right to a climate system capable of sustaining human
life.” If “governmental action is affirmatively and substantially damaging the
climate system in a way that will cause human deaths, shorten human lifespans,
result in widespread damage to property, threaten human food sources, and
dramatically alter the planet’s ecosystem,” then the plaintiffs have a claim
for protection of their life and liberty under the fifth amendment. “To hold
otherwise would be to say that the Constitution affords no protection against a
government’s knowing decision to poison the air its citizens breathe or the
water its citizens drink.”
Judge Aiken also
ruled that the public trust doctrine was applicable to climate change. She
quoted a judicial opinion that the right of future generations to a “balanced
and healthful ecology” is so basic that it “need not even be written in the
Constitution” for it is “assumed to exist from the inception of humankind.”
Shortly after
Trump’s inauguration the government asked the Ninth Circuit Court of Appeals to
overturn Judge Aiken’s ruling. In March, 2018 –more than a year later
– Trump’s appeal was rejected and the federal magistrate judge set a
new trial date for October 29, 2018 in federal district court in Eugene,
Oregon. Further delays are possible; the Trump administration has until June 5
to ask the Supreme Court to intervene and issue a stay, and there are other
procedural ploys that could conceivable delay the trial. And, when Judge Aiken
gets the chance to finally rule on the case, the parties will almost certainly
engage in appeals all the way to the U.S. Supreme Court.
A constitutional
necessity
Constitutional
climate arguments are also reaching the courts as part of a necessity defense
for civil disobedience. The necessity defense is well established in
Anglo-American common law. While judges very often resist such necessity
claims, since the 1970s hundreds of people who have committed civil
disobedience in service of the public good have been acquitted on the grounds
that their actions were taken to prevent a greater harm. To make a necessity
defense the accused must prove that they believed their act was necessary to
avoid or minimize a harm; that the harm was greater than the harm resulting
from the violation of the law; and that there were no reasonable legal
alternatives.
Two lawyers
involved with these cases argue that public trust and constitutional
arguments “make the case for climate necessity more compelling.”
The political
fight in which climate activists find themselves, rather than being a mere
difference of personal opinion — should the government permit oil pipelines or
not? —involves the violation of fundamental rights. As in many instances of
civil disobedience throughout American history, climate activists are driven by
a necessity to vindicate guarantees secured under the Constitution.”
In October, 2013,
a climate activist named Alec Johnson (aka Climate Hawk) locked himself to a
Keystone XL construction excavator in Tushka, Okla. and announced he
would argue in court that his action was necessary in order to
protect the atmospheric public trust. Johnson ran into an article about
the atmospheric public trust and followed up by reading Mary Christina Wood’s
book Nature’s Trust. Johnson was the first defendant anywhere to
make a necessity defense based on the Constitutional duty of government to
protect the climate under the public trust doctrine.
In a statement he
prepared for the jury, Johnson argued that his blockade of Keystone XL pipeline
construction was necessary because the pipeline threatens our atmospheric
public trust, and state and national governments were failing to protect us
against that threat. He proclaimed on the basis of the public trust principle,
“I wasn’t breaking the law that day — I was enforcing it.” The judge refused to
let Johnson present a necessity defense, but he was allowed to explain his
motivation to the jury. Although Johnson could have been sentenced to up to two
years in the Atoka County jail, the jury, which under Oklahoma law determined
his sentence, gave him to no jail time and a fine of just over
$1,000.
In 2014, Delta 5
activists blocked trains carrying Bakken crude oil in Bellingham, Washington.
The judge let the defense present six witnesses on the dangers of climate
change and local environmental risks of the trains, but ultimately ruled out a
necessity defense on the grounds that the defendants had reasonable
alternatives to civil disobedience. The defendants were acquitted of
“obstructing a train” but convicted of trespass. In an Amicus Curiae
“friend of the court” brief supporting their appeal, the Climate Defense
Project, with assistance from a senior staff attorney with Our Children’s
Trust, linked public trust and constitutional climate rights to the climate
necessity defense asserted by the Delta 5. The necessity defense is supported
“not just by the severity of the harms Defendants sought to avert” but by the
“concrete and immediate constitutional legal injuries suffered by the
Defendants and the citizens of Washington, as public trust beneficiaries.” The
judge’s refusal to allow a necessity defense is under appeal.
In 2016, activists
associated with 350 Vermont chained themselves to construction equipment
building a gas pipeline. They were charged with criminal trespass. They asked
the court to allow them to defend themselves “on the basis of the Public Trust
doctrine,” asserting that the state Public Service Board had violated its
public trust duties by permitting the pipeline despite the global warming
consequences. The court refused to allow a necessity defense.
In October, 2016
“Shut It Down” activists in Minnesota, Montana, North Dakota, and Washington
turned valves to shut off tar sands oil flowing from Canada. In Washington, Ken
Ward was charged with second degree burglary and criminal sabotage. The court
refused to let him present a necessity defense. His first trial resulted in a
hung jury; a second trial convicted him for burglary, which is under appeal. In
Minnesota, Shut It Down activists were charged with committing or aiding
criminal damage and trespass. They will be allowed to present a necessity
defense. The necessity arguments of both cases will test the constitutional
rights established by the Aiken decision.
In a year-long
campaign, 198 people were arrested blocking construction of the West Roxbury
Lateral Pipeline in Massachusetts. Thirteen of them were charged with
crimes and the judge allowed them to present a necessity defense. The
defendants’ pre-trial filings emphasized the imminent local and global harms
the pipeline would cause, but they also discussed the public trust duties of
government and the right to a stable climate.
The failure by the
federal and state governments to take action commensurate with the severity of
the climate crisis is a violation of government’s public trust and
constitutional duties and represents an additional imminent and ongoing injury.
Recently, the federal
District of Oregon . . . ruled that climate change harms federal public trust
resources, including land beneath tidal waters, and that the government’s
contributions to climate change may amount to a breach of fiduciary duty.
The Juliana opinion
likewise recognized that constitutional guarantees are implicated by ongoing
climate-related harms. Accepting plaintiffs’ arguments that the government’s
knowing contributions to climate change and the resulting damage to life,
liberty and property, if proven, would violate their Fifth Amendment due
process rights and un-enumerated rights under the Ninth Amendment.
A week before the
trial date the prosecutor unexpectedly reduced the criminal charges to a mere
infraction – the equivalent of a parking ticket. By only charging an
infraction, the prosecutor was able to prevent a trial that would have put the
pipeline and the whole climate destruction it represented on trial. According
to Marla Marcum of the Climate Disobedience Center, lead organizer on
the sustained campaign of nonviolent direct action in West Roxbury and
coordinator of its legal defense, “the charges were probably reduced in order
to avoid the trial for which the defendants, their legal team, nine expert
witnesses, and many supporters had prepared.”
Judge Mary Ann
Driscoll then said, "Based on the very heartfelt expressions of the
defendants” who “believe in their cause” and who “believe they were entitled to
invoke the necessity defense,” I “find them all not responsible." “Not
responsible” is the equivalent for an infraction of a finding of “not guilty”
in a criminal case. Marcum says, “this is the first time that defendants
were acquitted by a U.S. judge based on climate necessity.”
Constitutional
climate arguments are not a magic bullet that will allow protesters to escape
legal penalties, let alone halt climate destruction. Ted Hamilton of the
Climate Defense Project notes that a criminal defense cannot be based solely “a
constitutional right to a safe climate or on a public trust claim.” These constitutional
arguments work best as supplements to the main necessity argument. But
constitutional claims can illustrate “the failure of legal alternatives” --
because the government is not only failing to address the climate crisis, but
is “violating its own duties and citizens’ rights through its failure.” And
constitutional arguments can highlight the harm protesters are targeting --
because that harm constitutes “a violation of constitutional rights and the
public trust.”
A constitutional
climate movement
To understand how
law cases seeking to establish constitutional climate rights can be synergistic
with action on the streets, it helps to look back on the history of the civil
rights movement.
For decades court
cases challenged government-enforced racial segregation as a violation of the
equal protection of the laws guaranteed by the 14th amendment to the U.S.
Constitution. In 1954 the Supreme Court consolidated several of these cases in
*Brown vs. Board of Education*. It found that racial segregation in public
schools violated the 14th amendment’s equal protection clause – thereby implying
that the same was true for voting, public transportation, and other areas of
government action.
Segregationists
responded with what they called “massive resistance” to integration, ranging
from closing public schools and sending state troops to block school
integration to brutalizing demonstrators and burning black churches. Meanwhile,
government made little effort to enforce the law as embodied in the Supreme
Court’s desegregation decision. In the vacuum there arose a direct action civil
rights movement that vowed to enforce the law even if governments wouldn’t. The
nonviolent “shot heard ‘round the world” was Rosa Parks’ refusal to move to the
back of the bus as people of color were required to do by local ordinance. Her
arrest was answered by the Montgomery bus boycott. 381 days after the start of
the boycott, the Supreme Court ruled that racial segregation on public buses
was unconstitutional.
The bus boycott
was soon followed by sit-ins at segregated lunch counters, freedom rides on
segregated interstate buses, and voter registration drives in counties that had
legally blocked African Americans from voting. All were met by violence, but
all ultimately achieved substantial success. The 1964 Civil Rights Act and the
1965 Voting Rights Act finally began to implement the equal protection of the
laws that had been asserted in the Brown decision a decade before.
Two lessons can be
drawn from this history. First, the finding of a fundamental Constitutional
principle by the courts empowered millions of people to take direct action to
establish rights based on that principle. Second, if those millions of people
had waited for the courts to enforce that principle it would have been centuries
longer before black people would have gained the rights won by the civil rights
movement. Civil rights advocates used the law by taking the law into their own
hands.
The climate
movement can use this synergism of the courts and the streets in two ways.
1. Backing the
courtroom struggle for climate rights with action in the streets.
According
to Julia Olson, Executive Director and Chief Legal Counsel for *Our
Children’s Trust*:
One thing that is
important to understand about the legal system is that judges and courts are
part of the public. They see what goes on in the media, they see what public
sentiment and public opinion is, and while the judges make decisions on the law
and the facts of the case, what is happening outside that courtroom has mattered
throughout history, in terms of the way our judiciary reacts to crises of
social justice.
Olson provides a
powerful recent example:
We saw that with
the gay marriage decision. It was really important: The court noted in its
opinion how times had changed, and there was public support for LGBT marriage.
There are many
other historical examples of the synergism between legal and social movement
action in leading to changes of judicial interpretation of the law. It is
difficult to imagine that courts would have legitimated the Wagner Act,
overthrown the “separate but equal” doctrine in the*Brown*decision, established
women’s reproductive rights in the *Griswold* and *Roe* cases, or more recently
supported the right of gay people to marry in *Obergefell*, without the
sit-down strikes, the civil rights movement, the women’s movement, or the gay
rights movement.
OCT’s support for
action beyond the courthouse goes back to its earliest days. From the
beginning, the youth plaintiffs have been organizing youth marches for climate
protection, participating in climate movement demonstrations, and reaching out
to other young people to engage in climate action.
Now Julia Olson
says, “We need the whole climate movement to help us mobilize for this trial.”
Speaking to a webinar co-sponsored by the Labor Network for Sustainability
and 350.org, she added,
What is happening
with the movement, and everything 350.org is doing, is
critical, and connects and helps build the intersectionality and the strength
of the public trust. Because when people are out in the streets and doing
things to support firm climate action and action that is based on science, it
helps support what we are doing in the courtroom.
The importance of
“people out in the streets” for the Juliana case will extend
beyond the initial trial. If the case is not won at trial, appeals and cases in
other venues will be necessary; popular support will be required both to
legitimize such efforts and to pay for them. If the case is won at trial,
popular support will be needed to carry the case through appeals, and to ensure
that the defendants – the federal government agencies – create and implement a
National Climate Recovery Plan capable of lowering and sequestering GHG
emissions in line with the best available science, thus staving off the worst
climate impacts. Public mobilization is the best guarantee that court-ordered
changes required for climate protection will actually be implemented, rather
than being blocked by push back from the fossil fuel industry and their supporters.
2. Use
constitutional arguments as part of climate action on the streets.
The Aiken decision
empowers the climate protection movement. It provides principles that justify
the movement’s demands for a rapid end to the burning of fossil fuels and its
replacement by climate-safe energy. It provides organizations and activists a
vision of how they can use the constitutional right to a stable climate and
protection of the public trust as a common unifying and mobilizing weapon in
all their efforts and arenas.
An example of how
constitutional principles can be incorporated in climate campaigns was provided
by the global Break Free From Fossil Fuels days of actions in May, 2016. The
U.S. organizers of 350.org issued a “Break Free Proclamation” which
drew on the principles asserted in *Juliana*case.
We are upholding
fundamental principles embodied in the laws and constitutions of countries
around the world.
We are upholding
the unalienable rights to life and liberty.
We are
implementing the public trust doctrine, which requires that vital natural
resources on which human well-being depend must be cared for by our government
for the benefit of all present and future generations.
Governments have
no right to authorize the destruction of the public trust.
Governments have
no right to wreck the rights to life and liberty for future generations.
We are here to
enforce the law on governments and corporations that are committing the
greatest crime in human history.
Now that federal
judge Aiken has ruled that the atmospheric public trust and the right to a
stable climate are indeed guaranteed by the U.S. Constitution, these arguments
can be used as part of every climate action from blocking pipeline construction
to demanding that city councils and state legislatures ban new fossil fuel
infrastructure and establish targets and plans for a fossil free future.
One in six
Americans say they would personally engage in nonviolent civil
disobedience against corporate or government activities that make global
warming worse. That’s about forty million adults. If one percent of them did so
it would immediately transform the politics of climate.
The Brown
decision didn’t cause the civil rights revolution, but it did create an
opportunity that millions of people seized on to make America a more just
country. Judge Aiken’s Juliana decision gives us an
opportunity to make it a more climate safe one.
Jeremy
Brecher is the author of more than a dozen books on labor and social
movements, including Strike! and the Climate Insurgency Trilogy.
He is research and policy director for the Labor Network for
Sustainability.
"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their lives."
Eugene Victor Debs
commondreams.org
