Climate Change | Environmental Law Institute

The First Earthrise Launched an Era

Read more about The First Earthrise Launched an Era

Author

Stephen R. Dujack - Environmental Law Institute

Environmental Law Institute

Current Issue

November-December 2018

Issue

The first Earthrise launched an era

Exactly 69 hours, 8 minutes, and 16 seconds after launch, the crew of Apollo 8 burned the spacecraft’s retro rockets while behind the far side of the Moon and out of contact with the Earth. That daring maneuver caused the capsule to enter lunar orbit. The craft circled the Moon three times. After the fourth pass behind the satellite, the three astronauts looked through their tiny glass port and became the first humans to witness an Earthrise.

Lunar Module Pilot William Anders took some photographs of the view in black and white, but he immediately realized the import of what he was seeing and called excitedly for a camera with color film. Command Module Pilot James Lovell passed him the Hasselblad and Anders took one of the most important photographs since the invention of the medium. It was Christmas Eve 1968.

That night 50 years ago, during a television broadcast that was at the time the most viewed in history, Commander Frank Borman announced that the crew had a message for the human race. Then each astronaut read in turn from the Creation Story in the Book of Genesis.

There was a poignancy that can’t be described to today’s interconnected world in hearing that scratchy transmission from a quarter of a million miles away, and the coincidence of the holy date and the tale of a universe coming into existence from nothingness to realize the awe of the harmoniously circling spheres created the perfect message for the first time that humanity had left its home planet.

Then when Apollo 8 returned to Earth and the film was developed, the import of the Earthrise image became apparent, leveraging on the broadcast of the opening verses of the Old Testament. It is safe to say that photograph helped to kick off the environmental era. One year after the lunar mission, Congress passed the National Environmental Policy Act. That same day, December 22, 1969, the Environmental Law Institute opened its doors.

Capturing the movement created by that photo, the essayist and medical doctor Lewis Thomas wrote about the view in the concluding chapter of his 1974 best seller The Lives of a Cell. The image makes sense of Thomas’s whole book. Lives makes the case that cells are collections of matter that work to perpetuate themselves — absorbing, storing, and using energy — and to produce new generations. Only from the vantage of another celestial body, however, is it apparent that the Earth too is self-perpetuating.

“Viewed from the distance of the Moon, the astonishing thing about the Earth, catching the breath, is that it is alive. The photographs show the dry, pounded surface of the Moon in the foreground, dead as an old bone. Aloft, floating free beneath the moist, gleaming membrane of bright blue sky is the rising Earth, the only exuberant thing in this part of the cosmos.”

Thomas notes that “it takes a membrane to make sense out of disorder in biology.” Just as a cell is protected by its membrane, “When the Earth came alive it began constructing its own membrane, for the general purpose of editing the sun.”

It happened in slow stages, as the rocky planet outgassed an atmosphere that proved hospitable for the first photosynthetic cells, which populated the surface with a veneer of green — the first biosphere. These cells produced an oxygen atmosphere with just enough carbon dioxide to cause a congenial greenhouse effect and serve as food for the plants that would later evolve.

In the upper reaches of the membrane, the oxygen is converted by sunlight into ozone, which in turn acts to shield the biosphere producing the oxygen from damaging ultraviolet radiation. Thus, the membrane edits energy to the benefit of the higher life forms that became possible, including of course the first animals and, eventually, environmental professionals.

“We are safe, well-ventilated, and incubated provided we can avoid technologies that might fiddle with that ozone, or shift the levels of carbon dioxide,” Thomas concludes. Chlorofluorocarbons were just becoming known to damage the ozone layer, leading to a phaseout in the 1987 Montreal Protocol. And the theory of climate change as the result of increased greenhouse gases was just getting launched, but within two decades the world had agreed to the 1992 UN climate convention and made more concrete steps in 1997 in Kyoto and 2015 in Paris.

When humanity realized how precious life is on our lonely blue-and-green rock, the reaction kicked off an era of legal interventions to protect the membrane we call the environment. A half century on, we’re still at it.

Notice & Comment is written by the editor and represents his views.

“Illinois Attorney General Lisa Madigan announced a lawsuit . . . against Trump International Hotel & Tower in Chicago, alleging it has violated environmental laws by dumping millions of gallons of water in the Chicago River daily without first conducting studies on the impact to the river’s fish, as federally mandated.”

— Politico Morning Energy

Gender-balanced Boards Save Dollars in Environmental Penalties

Companies with a more balanced mix of men and women on their boards are better at protecting the environment and less likely to be sued for environmental law violations, according to new research from the University of Adelaide.

The study, published in the Journal of Corporate Finance, examined 1893 environmental lawsuits raised against the ‘Standard and Poor’s’ 1500 firms in the United States between 2000 and 2015 and identified direct links between gender diversity and corporate environmental violations.

The study found companies with greater gender diversity on their boards experienced significantly fewer environmental lawsuits, indicating that female directors contribute to reducing corporate environmental litigation. For example, for every female added to a board of directors in the sample, the average lawsuit exposure is reduced by 1.5%, which on an average environmental lawsuit (USD $204 million) could equate to a saving of USD $3.1 million.

The study’s author and Adelaide Business School Senior Lecturer, Dr Chelsea Liu says the explanation for the findings lies in gender socialisation and diversity theories. “Gender diversity is what’s important — female representation on boards is most important where the CEO is male, and less important if the CEO is female,” says Dr Liu.

— AAAS Eureka Alert

Did Congress address climate change?

Whether the Clean Air Act, originally passed in 1970, can be applied to global warming was a matter of intense debate during the litigation leading up to the Supreme Court’s 2007 decision Massachusetts v. EPA, in which the justices ruled that if the agency determines greenhouse gases are dangerous, it is required to regulate them. Two years later, the Obama EPA issued an endangerment finding for carbon dioxide and other gases, which was followed by restrictions on emissions from mobile sources and, later, power plants.

Buried in the original 1970 legislation is the word climate, in a list of welfare conditions that concerned the lawmakers in writing the powerful statute. Climate change didn’t become a major issue till the 1980s and wasn’t determined to be a matter in the act’s ambit for another two decades after that. Could it be that the original drafters of the statute knew about an issue that wouldn’t become a public policy concern for more than a generation?

Tom Jorling served as minority counsel to the Senate Committee on Public Works and its Subcommittee on Air and Water Pollution from 1968 through 1972. We asked him about this single word in the original legislation:

“The several years preceding the enactment of the 1970 act witnessed a rapid expansion of knowledge about the effects of air pollution. While much attention was given to the health effects in the committee, in Congress, in the media, and among interest groups there was growing awareness of broad-scale physical and chemical changes in the atmosphere as well as ecosystem effects as a result of air pollution. This was explicitly recognized in the act by including in its regulatory provisions, not just controlling health effects, but also abating effects on ‘welfare,’ defined to include ‘effects on soils, water, crops, vegetation, man-made materials animals, wildlife, weather, visibility, climate . . . and personal comfort and well-being.’

“There was growing recognition that human activities involving the release of pollutants into the atmosphere was causing significant consequences for the biosphere. Some of the consequences brought early to the attention of the committee resulted from the documented fact that radionucleides from above-ground nuclear weapons testing were distributed through the atmosphere. Similarly, the DDT molecule was found in the tissue of every organism sampled throughout the Earth’s biosphere. There was increasing concern over the effects on precipitation patterns produced by the release of particulate matter, primarily from the combustion of fossil fuels.

“There was growing concern over the apparent increase in heating of the atmosphere, not just in the urban heat pockets that had been so well documented. Senators Edmund Muskie and John Sherman Cooper, primary authors of the 1970 act, attended, along with some committee staff, the 1968 Congressional Joint Colloquium on the Environment, where the atmospheric scientist Walter Orr Roberts described the warming consequences of packing the atmosphere with gases resulting from combustion of fossil fuels.

“The scientists demonstrated the adverse effects of atmospheric ozone, photochemically produced from air pollutants, on vegetation and crops. They expressed concern about the deposition downwind of industrial facilities of nitrogen, sulfur, and other compounds shown to cause landscape-scale ecosystem degradation.

“In short, there was widespread recognition that air pollutants, some known and others that would be revealed with more research, caused what the act called ‘welfare’ effects that were addressed by Congress in the regulatory structure of the 1970 act.”

Fifty years ago, Apollo 8’s “Earthrise” photo kicked off environmental era.

The Origins of Political Polarization and the Fractured Climate Dialogue

Read more about The Origins of Political Polarization and the Fractured Climate Dialogue

Author

Craig M. Pease - Scientist and Law Professor

Scientist and Law Professor

Current Issue

November-December 2018

Issue

Like a glass vase hitting the floor, our formerly cohesive and cooperative society is fracturing into diverse and sharply splintered parts. In the past, polarizing language seemed mostly to be confined to litigation and fringe groups. Now our political language and institutions, our financial, intellectual, and political elites, and the public all seem to be at odds.

The data bear this out. In its 2017 report “The partisan divide on political values grows even wider,” the Pew Research Center shows that the political positions of Republicans and Democrats on a range of issues broadly overlapped in 1994, but that by 2017 those positions had split into two quite distinct and nearly dichotomous camps. Gary Jacobson’s unpublished manuscript dated September 2018, and the references therein, document the diverse guises this polarization takes, thereby showing it to be a robust feature of today’s politics.

So too for environmental opinion. Aaron McCright and Riley Dunlap, in a 2011 article, document increasing polarization of the public’s views on climate change from 2001 to 2010. This has built up over decades; ponder the near unanimous support for the environmental statutes enacted in the 1970s, the weakly bipartisan support for the 1990 Clean Air Act Amendments, and the often vacuous posturing of environmental debates in today’s Congress.

As a scientist, I am driven to do more than just get caught up in all this, by adopting and arguing for the views of one particular group or another. I am curious as to the causes and mechanisms behind this political polarization — the why and the how. Alas, here matters become murky.

Part of the answer lies in human cognition and psychology. The brain quickly and subconsciously acts on emotions, and only slowly and consciously pursues rational thought. The proximate driver of polarization is often political messages that appeal not to reason, but emotion.

Part of the answer lies in sociology. There is a sociological element to environmental debate, action, and polarization — an entire audience applauds an advocate, or a group protests in a sit-in. Our individual words, ideas, and actions reverberate off those physically close to us, who then echo them back to us. Often, we humans act by mimicking a reflection of ourselves. For a marvelously instructive anecdote, see Dan Kahan’s 2012 Nature article describing climate change opinion in a barber shop.

Humans strive to conform. And not just to those with physical propinquity. We draw our opinions and positions from those we are close to, in words, intellect, and ideology.

Justin Farrell offers a fun glimpse into all this in his 2016 PNAS paper “Corporate funding and ideological polarization about climate change.” Therein he analyzes an immense data set of “contrarian” climate change texts containing some 39 million words, drawn from some 164 organizations (think tanks, grassroots organizations, etc.), involving over 4,000 individuals. At its core, the question he asks is: What words cluster together?

Using powerful computer language processing of these texts, Farrell identifies clusters of words often found together, and then shows that there are clusters of clusters, etc. Indeed, Farrell finds only four main clusters of clusters of clusters, which he roughly labels disputes over scientific evidence; public knowledge of climate change and Al Gore; state versus federal issues; and energy-company concerns. Farrell provides color commentary by labeling the clusters, yet those agglomerations are present naturally in the texts, not something Farrell arbitrarily imposed.

Farrell analyzed only contrarian texts. One could undertake a similar study for environmental nonprofits, or an even larger study of the entire immense data set of all climate change texts. I do not see this polarization as being the “fault” of climate deniers, climate advocates, or anyone else. It just is.

Farrell, and indeed the scientific literature generally, leave unanswered the question of what is driving this ever-increasing polarization. My hypothesis is that the over 7 billion humans on Earth are encountering real resource limitations and scarcity. There is increasingly not enough to go around, causing the breakdown of institutional structures that promote cooperation.

I fear that this political polarization is evidence we have transitioned to a world where our institutions are not strong enough to promote cooperation, and where each person and his or her close friends are just grabbing whatever resources they can, by whatever means. There are some instructive parallels in the downfall of the Roman Empire — first the barbarians trying to just grab some resources, and then the entire system eventually descending into the extreme political splintering of feudalism.

The origins of political polarization and the fractured climate dialogue.

The Time for Abatement Alone Is Passing Us By — Should Humanity Consider Geoengineering?

Read more about The Time for Abatement Alone Is Passing Us By — Should Humanity Consider Geoengineering?

Author

Arunabha Ghosh - Council on Energy, Environment, and Water

Edward A. Parson - UCLA Emmett Institute on Climate Change and the Environment

Cynthia Scharf - C2G2/Carnegie Climate Geoengineering Governance Initiative

Simone Tilmes - National Center for Atmospheric Research

Council on Energy, Environment, and Water

UCLA Emmett Institute on Climate Change and the Environment

C2G2/Carnegie Climate Geoengineering Governance Initiative

National Center for Atmospheric Research

Current Issue

November-December 2018

Issue

The Time for Abatement Alone Is Passing Us By — Should Humanity Consider Geoengi

Scientists have begun to hedge their bets and not count on society decarbonizing in time to avoid disruption to the Earth’s climate system. Even if the dreams of the Paris Agreement are fully realized, the planet may become uncomfortably warm in the near term, bringing severe conditions. Consider current events.

Houston has been hit with two 500-year rainstorms this decade alone. The American West has turned into a tinderbox, with water running out and wildfires devastating populated areas every summer. Miami along with a lot of the rest of southern Florida is slowly slipping into the sea. Russian cargo ships are sailing from Vladivostok to Europe by way of an ice-free Arctic Ocean.

Enter a once-taboo topic shunned by greens and governments alike — geoengineering, a suite of technological remedies to solve the climate crisis or at least buy humanity more time to rid our energy and agricultural systems of greenhouse gas emissions. AT&T’s Braden Allenby wrote about such intervention in these pages 18 years ago. In “Global Warning,” he declared that international efforts at emissions abatement were doomed to failure and that “society should actively manage the entire carbon cycle, using a broad array of technologies and policies to achieve climate stabilization.” What seemed like science fiction then has become today’s unfortunate reality.

The proposals are as diverse as they are serious. One of the most-touted solutions is to reflect incoming solar radiation, perhaps by injecting sulfur particles into the upper atmosphere. Or water droplets injected into clouds could make them more reflective. Another method would attempt to increase heat leaving the Earth by seeding the atmosphere with particles to thin high cirrus clouds that block energy outflow. Engineers have even suggested a huge mirror in solar orbit that would reflect a significant percentage of the sun’s incoming heat.

Other possibilities revolve around removing greenhouse gases from the atmosphere, which can be accomplished through engineering techniques or even seeding the oceans with iron to cause algae blooms that sequester carbon on the seabed. More naturally, planting trees locks up carbon, and silicate rocks can be granulated to enhance their uptake of atmospheric carbon.

All well and good, but scientists are also aware that these techniques could play havoc with the planet’s natural systems, disrupting flows of energy and elements that are vital to habitability. In addition, effects may perhaps worsen some conditions, and may be uneven, creating winners and losers. These unpredictable downside risks as well as climate-saving opportunities imply some sort of international body to manage geoengineering, but society has had some bad experiences in regulating technologies of much less consequence.

Is geoengineering necessary? What techniques will be the most successful while minimizing risks? And who will answer these questions and begin any needed interventions in the Earth’s climate system?

Scientists around the world have begun to hedge their bets and not count on society’s decarbonizing in time to avoid disruption to the Earth’s climate. Enter a once-taboo topic shunned by greens and governments alike — geoengineering, a suite of suggested technological remedies to solve the climate crisis or at least buy humanity more time to rid its energy and agricultural systems of greenhouse gas emissions.

"No Ordinary Lawsuit"

Read more about "No Ordinary Lawsuit"

Author

Barry E. Hill - Vermont Law School

Vermont Law School

Current Issue

November-December 2018

Issue

Before rap, before hip-hop, there was the music of Gil Scott-Heron, the poet, singer, songwriter, musician, and author of the 1971 spoken-word anthem “The Revolution Will Not Be Televised.” Political consciousness was at the foundation of his work. According to Scott-Heron, “The revolution takes place in your mind. . . . When you want to make things better you’re a revolutionary.” Today, of course, the revolution is not only televised, it is Facebooked, Twittered, and Instagrammed. The kids who survived the horrible school shooting in Parkland, Florida, became successful young revolutionaries in the fight for stronger gun laws via social media and 24-hour news channels.

But in a quiet federal district courtroom in Oregon, another group of kids are becoming revolutionaries, too, but via legal briefs rather than tweets and mass rallies and talking heads on cable and YouTube. The Supreme Court itself, in denying the Trump administration’s application for a stay, unanimously said last summer it will not interfere with the progress of the youngsters’ lawsuit against the federal government for failing to protect them against a worsening environment caused by emissions of greenhouse gases. To be clear, this suit was not a reaction to the Trump administration; it was filed in August 2015, when Trump was still a long-shot candidate. But it has been injected with renewed fervor by the president’s withdrawal from the Paris climate agreement and his anti-climate regulatory rollbacks.

Millennials — the grandchildren of Baby Boomers like Scott-Heron — are speaking out and demanding comprehensive reform of government policy regarding climate change. They have more at stake than their aged progenitors in ensuring that the habitability of the planet doesn’t erode in their lifetimes. Their youthful energy and enthusiasm, and demand for change, is evident broadly in the environmental law and policy area, and specifically in litigation in federal and state courts.

These Generation Y activists believe in the pluralism of a diverse country and in environmental justice. They affirm the basic principle that all people, regardless of age, race, color, national origin, or socioeconomic status, are entitled to fair treatment and meaningful involvement with respect to the development, implementation, and enforcement of climate change policy. Finally, these revolutionary persons believe the federal government is required to protect the environment and the atmosphere in particular as part of its public trust responsibilities. Otherwise, in denying them life, liberty, and the pursuit of happiness, the federal government is violating these due process rights under the Constitution.

Sadly, EPA’s new policy is to deny that greenhouse gas emissions are driving climate change. This abegnation, however, is entirely inconsistent with the law. Notably, the agency’s current position is contrary to that established by then Administrator Lisa Jackson in response to Massachusetts v. EPA, in which the Supreme Court ruled in 2007 that the agency must regulate pollutants that cause climate change. Consequently, in the 2009 Final Endangerment Finding under Section 202(a) of the Clean Air Act, Jackson determined that greenhouse gases released into the atmosphere threaten public health and the welfare of future generations. The Trump administration’s change in policy and pullout from the Paris Agreement is contrary to the dictates of the Massachusetts decision and to the findings of the U.S. Global Change Research Program, the National Academy of Sciences, and the Intergovernmental Panel on Climate Change that the warming of the climate system in recent decades is unequivocal.

Fortunately, a diverse group of 21 young people, between the ages of 8 and 19, from across the country are challenging in federal district court in Oregon the Trump administration’s strained views on climate change and climate science in a landmark lawsuit, Juliana v. United States. The youngsters complain that the federal government, in causing climate change, has violated the newest generation’s constitutional rights to life, liberty, and property in violation of the Due Process Clause of the Fifth Amendment. The complaint alleges that the federal government promotes the development and use of heat-trapping fossil fuels. The climate youth plaintiffs argue that the government has known for decades that fossil-fuel emissions are destroying the climate system and not only failed to restrict those emissions but also continued to authorize fossil-fuel-development projects that amplify the danger and foreclose the opportunity to stabilize the atmosphere. The climate youth plaintiffs seek a court order requiring the president to implement immediately a national plan to decrease atmospheric concentrations of carbon dioxide to a safe level, 350 parts per million by the year 2100, which is based upon sound climate science.

In denying them their constitutional rights, the youths argue that the federal government has failed to protect and conserve the nation’s public trust resources, including the atmosphere. This argument originates from the Atmospheric Trust Litigation Approach developed by Professor Mary Christina Wood of the University of Oregon’s Environmental and Natural Resources Law Center. According to Wood, “It’s kind of a straightforward exercise to apply the public trust to the atmosphere. The government is a trustee and has to protect it for the benefit of present and future generations.”

In Massachusetts v. EPA, the Supreme Court recognized the federal government’s public trust responsibility regarding the atmosphere. “When a state enters the union,” the Court wrote, “it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police power to reduce in-state motor vehicle emissions might well be preempted. . . . These sovereign powers are now lodged in the federal government.”

Understanding the climate youth plaintiffs’ arguments in this case requires a brief primer on the ancient public trust doctrine, which has been in existence since the time of the Romans. In the Institutes of Justinian, the Emperor Justinian articulated the idea of the public trust when he stated, “By the law of nature these things are common to mankind — the air, running water, the sea, and consequently the shores of the sea.” In its early form, the public trust doctrine sought to protect the public’s right to access certain resources, particularly navigable bodies of water. The English later incorporated the doctrine into their legal system, and, in 1215, the public trust emerged as part of the Magna Carta, which, among other things, specifically condemned interference with citizens’ access to navigable waters, and prevented the king from giving favored noblemen exclusive rights to hunt or fish in certain areas. Although the monarch was understood to own the land, he had an obligation to protect it for use by the public. Still later, the public trust doctrine became a part of American common law, particularly in state courts. And in 1983, in the seminal case National Audubon Society v. Department of Water and Power of the City of Los Angeles, the California Supreme Court ruled, “The public trust is an affirmation of the duty of the state to protect the people’s common heritage of streams, lakes, marshlands and tidelands.” Other state courts have made similar findings.

The American Petroleum Institute, the National Association of Manufacturers, the American Fuel & Petrochemical Association, and other organizations immediately intervened in the Juliana case as defendants, joining the U.S. government in trying to have the case dismissed. (They later filed motions to withdraw, which were granted by the court last year.)

In April 2016, U.S. Magistrate Judge Thomas Coffin decided in favor of the 21 climate youth plaintiffs. Coffin characterized the case as an “unprecedented lawsuit” addressing “government action and inaction” resulting “in carbon pollution of the atmosphere, climate destabilization, and ocean acidification.” In ruling that the case should proceed, Coffin wrote: “The debate about climate change and its impact has been before various political bodies for some time now. Plaintiffs give this debate justiciability by asserting harms that befall or will befall them personally and to a greater extent than older segments of society. It may be that eventually the alleged harms, assuming the correctness of plaintiffs’ analysis of the impacts of global climate change, will befall all of us. But the intractability of the debates before Congress and state legislatures and the alleged valuing of short term economic interest despite the cost to human life, necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government. This is especially true when such harms have an alleged disparate impact on a discrete class of society.”

In November 2016, U.S. District Court Judge Ann Aiken upheld Coffin’s recommendation with the issuance of a historic opinion and order denying the motions to dismiss. “This is no ordinary lawsuit,” Aiken wrote. “This lawsuit is not about proving that climate change is happening or that human activity is driving it. For the purposes of this motion, those facts are undisputed. The questions before the court are whether defendants are responsible for some of the harm caused by climate change, whether plaintiffs may challenge defendants’ climate change policy in court, and whether this court can direct defendants to change their policy without running afoul of the separation of powers doctrine.”

With respect to the climate youth plaintiffs’ public trust argument, Aiken determined that the atmosphere is in fact a public trust asset, that the federal government has a public trust obligation, that the federal government’s public trust obligation is not displaced by federal environmental statutes, and that the youth plaintiffs have a private right-of-action to enforce the federal government’s public trust obligation.

In February 2017, President Trump was named a defendant and the new administration immediately took aggressive action in the litigation. The administration filed a motion seeking expedited appeal of Aiken’s opinion and order to the Ninth Circuit. And in June 2017, the administration filed a writ of mandamus petition with the Ninth Circuit seeking an extraordinarily rare review of Aiken’s opinion and order.

Ten months later, a unanimous three-judge panel of the Ninth Circuit rejected the Trump administration’s “drastic and extraordinary” petition for a writ of mandamus. The appellate court ruled that the case could proceed toward trial, and that the administration had not satisfied the factors necessary for an extraordinary writ of mandamus. Chief Judge Sidney R. Thomas wrote that the federal government’s request to halt the litigation was “entirely premature,” and that “the government’s concerns would be better addressed through the ordinary course of litigation.”

The Trump administration, surprisingly, filed a second petition for a writ of mandamus to dismiss the case altogether, or, in the alternative, to stay all discovery and trial. Last year, in a per curiam decision, Thomas wrote: “No new circumstances justify the second petition to grant mandamus relief,” and that “the merits of the case can be resolved by the district court or in a future appeal.” The request for a dismissal was denied, and that action was affirmed by the Supreme Court last summer.

In short, the administration cannot evade a constitutional climate change trial, which is scheduled to be underway at the time you read this. In order to prevail, the youth plaintiffs will need to show that the federal government’s actions created the danger to the plaintiffs; that the federal government knew its actions caused the danger; and that the federal government, with deliberate indifference, failed to act to prevent the alleged harm.

In the course of this litigation, the following questions arise: Do the actions of President Trump in withdrawing the United States from the Paris climate agreement, and in related policy actions such as reversing Obama’s regulations addressing carbon pollution from automobiles and power plants, make the plaintiffs’ case stronger? Are President Trump’s past statements that climate change is a “Chinese hoax” a boost to the plaintiffs? Will this case determine whether there is an enforceable human right to a clean and healthy environment for young people based upon the adverse effects of climate change? Will this case determine whether the Constitution guarantees a livable planet for young people? A jury of ordinary Oregon citizens will decide, among other things, the purpose of the public trust; the scope of the doctrine, particularly as it applies to the atmosphere; and the powers and duties of the federal government as trustee of the environment.

The climate youth plaintiffs are represented by the non-profit organization Our Children’s Trust, whose “mission is to protect the Earth’s atmosphere and natural systems for present and future generations.” This Oregon-based nonprofit has brought similar climate youth litigation in state court in Colorado, Maine, Massachusetts, New Mexico, North Carolina, Washington, Florida, and Alaska.

Our Children’s Trust spearheaded the climate youth litigation Reynolds v. Florida earlier this year. In that lawsuit, a diverse group of eight Floridians, ages 19 and younger, filed suit against the state and Governor Rick Scott for the “Defendants’ deliberate indifference to the fundamental rights to a stable climate system” in violation of Florida common law and Article I, Sections 1, 2 and 9; Article II, Sections 5, 7(a), and 8; and Article X, Sections 11 and 16, of the Florida Constitution. The youths argued: “All of Florida’s public trust resources, including without limitation, the atmosphere (air), submerged state sovereignty lands, lakes, rivers, beaches, water (both surface and subsurface), forests, and wild flora and fauna (individually, a “Public Trust Resource,” and collectively, “Public Trust Resources”), are essential for life, liberty, pursuit of happiness, and property, including human habitation and personal and economic health, safety, and wellbeing.”

Scott, who is now running for the U.S. Senate, is a noted climate denier. For example, in a 2010 interview aboard his campaign bus, when asked if he believes in climate change, he said, “I have not been convinced.” When asked what he needs to convince him, he stated, “Something more convincing than what I’ve read.” A few years later, he dodged the same question, saying only that he is “not a scientist.”

In Alaska, last October some 16 plaintiffs, many of whom were minors, filed a lawsuit in state court against the state, its governor, and its agencies alleging that the defendants had violated “their inalienable and fundamental rights to life, liberty, property, equal protection, public trust resources, and a stable climate system that sustains human life and liberty.” In Sinnok v. State of Alaska, the youth plaintiffs, represented by Our Children’s Trust, argue that in implementing its “Climate and Energy Policy,” which authorizes and facilitates activities producing greenhouse gas emissions and which does not implement needed climate mitigation standards, the defendants failed “to enforce Sections 1, 7, and 21 of Article I of the Alaska Constitution and Article VIII of the Alaska Constitution.”

Moreover, the youth plaintiffs argue, “All of Alaska’s Public Trust resources, including, without limitation, waters (surface, subsurface, and atmospheric), fish, and wildlife, air (atmospheric), the climate system, the sea and the shores of the sea, submerged and submersible lands, beaches, forests, and tundra (each individually a “Public Trust Resource,” and collectively “Public Trust Resources”), and correlative public uses to such resources, including, without limitation, public access, fishing, and navigation, are essential for Youth Plaintiffs’ rights to life, liberty, and property.”

This lawsuit is interesting in that oil and gas have represented the lifeblood of Alaska’s economy. Beginning in 1982, a family of four would have received a total dividend payment of $133,461 from oil and gas accounts. So this suit is hitting where it hurts in terms of the state’s traditional economy, which the plaintiffs view as neglectful of their public trust rights.

These revolutionary persons’ lawsuits in Florida and Alaska (and other states) mirror, in many respects, the legal arguments in the Oregon federal district court climate youth case. In the three suits, the climate youth plaintiffs argue that a government, whether federal or state, elected by and for the people has a duty to protect the public trust, which includes the atmosphere, for present and future generations. And if the executive and legislative branches of government fail to exercise that public trust duty, the judicial branch must intervene to reduce and mitigate any adverse effects.

Our Children’s Trust is part of a coordinated effort “to support youth and attorneys around the world who are developing and advancing legal actions to compel science-based government action on climate change in their own countries.” Our Children’s Trust’s U.S. and global lawsuits seek “climate justice,” which is the term used for framing global warming as an ethical and political issue, rather than one that is purely environmental in nature. This is done by relating the effects of climate change to modern concepts of justice, particularly environmental justice and social justice. The fundamental principle of climate justice is that those who are least responsible for climate change suffer the gravest consequences. Citizens, therefore, around the world are suing their own governments for failing to protect them. According to a May 2017 report issued by UN Environment and Columbia University’s Sabin Center for Climate Change Law, there were more than 900 such cases in 24 countries seeking climate justice, with more than 654 in the United States alone.

Climate justice litigation has shown a considerable amount of success, beginning with the precedent-setting 2015 lawsuit Urgenda Foundation v. Kingdom of the Netherlands, brought by 900 citizens against the government. The plaintiffs were represented by the Dutch environmental group Urgenda Foundation. The citizens won, which resulted in the court ordering the government to cut greenhouse gas emissions nationwide by at least 25 percent by the year 2020 (compared to 1990s levels). The case was upheld on appeal on October 9.

This case laid the foundation for similar lawsuits around the world, all relating to the governments’ obligations to mitigate climate change and grounded in part on rights-based theories rather than through reference to environmental statutory requirements. The Hague District Court in Urgenda said, “The state must do more to avert the imminent danger caused by climate change, also in view of its duty of care to protect and improve the living environment.” Our Children’s Trust continues to improve upon this rights-based litigation strategy with its climate youth lawsuits.

The Trump administration and the administrations of several state governments should heed the warning of one of the world’s most noted social justice icons. The Reverend Dr. Martin Luther King Jr. once said that it is imperative before it’s too late for humanity to “join with the Earth and each other, to bring new life to the land, to restore the waters, to refresh the air, to renew the forests, to care for the plants, to protect the creatures, to celebrate the seas, to rejoice in the sunlight, to sing the song of the stars, to recall our destiny, to renew our spirts, to reinvigorate our bodies, to recreate the human community, to promote justice and peace, to love our children and love one another, to join together as many and diverse expressions of one loving mystery, for the healing of the Earth and the renewal of all life.”

Consistent with the thrust of Dr. King’s words, young people in Utah, for example, were recently successful in getting the state legislature and the governor to issue the “Concurrent Resolution on Environmental and Economic Stewardship.” In March, Governor Gary Herbert signed H.C.R.7, the concurrent resolution, that, among other things, acknowledges the state’s tradition of stewardship of the natural resources and the environment; recognizes the need for responsible stewardship to mitigate the risks of, prepare for, and address the changing climate and its effects; encourages the use and analysis of sound science to understand the causes and impacts of local and regional climates; and expresses a commitment to create and support economically viable and broadly supported solutions, including solutions in rural communities.

Still further, a tight-knit group of technologically savvy youngsters created a nationwide coalition called Zero Hour, an environmentally focused movement led by climate justice advocates. This youth movement is committed to pressuring governments to move faster on climate change policy and action. Last July — a day after the appellate court’s decision in the Juliana case – Zero Hour members marched in Washington, D.C., Los Angeles, Seattle, and London, and met with various legislators to share their concerns about the lack of action on climate change by their governments. These kids will not stay silent on this issue. They are revolutionary persons.

In issuing a five-year strategic plan, EPA stated in 2010: “Environmental justice and children’s health protection will be achieved when all Americans, regardless of age, race, economic status, or ethnicity, have access to clean water, clean air, and healthy communities.” Or as Judge Aiken recognized more broadly in the suit before her in federal district court in Oregon, as described in the American University Law Review, “the right to a stable climate system, implicit in due process, is a constitutionally protected right, a consequence of the government’s dominion over trust resources like submerged lands and oceans.” Convincing a jury in her federal courtroom that that right has been abrogated by the government as trustee in ignoring greenhouse gas emissions and changing atmospheric conditions while supporting the fossil-fuel industry will be the job of the plaintiffs.

Watch the coverage of the lawsuit, which starts October 29. Outside the courtroom itself, this time the revolution is being televised, 24/7, and its precepts disseminated via Google, Facebook, and Twitter. The songwriter-poet Gil Scott-Heron would be proud of the grandchildren of the Baby Boomers who fought for the first racial justice and environmental laws. The kids support developing climate policy based on sound science, consistent with the principles of environmental justice and the federal and state constitutions. And as the 1950s chant regarding international coverage of civil rights events reminds us today, “The whole world is watching.” TEF

LEAD FEATURE ❧ Youth plaintiffs in Oregon are suing the federal government for climate inaction — one of many similar suits around the country and the world. Litigation based on the public trust doctrine can be difficult to win, but Millennials are speaking out about an issue that profoundly affects them.

Linkage Will Prove Essential for Ultimate Success of Paris Agreement

Read more about Linkage Will Prove Essential for Ultimate Success of Paris Agreement

Author

Robert N. Stavins - Harvard Kennedy School

Harvard Kennedy School

Current Issue

September-October 2018

Issue

The hybrid design of the Paris Agreement was key to its successful enactment in 2015, as well as its coming into force a year later. The combination consists of centralized and decentralized elements. The top-down elements include the requirement that countries state their national contributions every five years, a schedule which is binding under international law for those jurisdictions that have ratified the agreement. The key bottom-up element is the set of individual Nationally Determined Contributions (or NDCs), which are not part of the agreement itself but rather are listed in a separate registry. These are not binding under international law, but rather are left to the domestic authority of the respective parties.

It was primarily this dual structure that led to the achievement of one of two necessary conditions for ultimate success of the Paris Agreement, namely adequate scope of participation, which includes countries accounting for 97 percent of global emissions, compared with the 14 percent that are covered by the Kyoto Protocol.

But adequate participation is only one of two necessary conditions; the other is adequate collective ambition. Unfortunately, the fundamentally voluntary nature of the NDCs — which, as I noted above, is precisely what facilitated the exceptionally broad scope of participation — works against adequate ambition to address this global commons phenomenon, which is plagued by the free-rider problem.

This raises the key overall challenge that will face the negotiators in Katowice, Poland, in December at the 24th Conference of the Parties of the United Nations Framework Convention on Climate Change: What can they do to encourage countries to increase over time the ambition of their individual contributions? That is where carbon markets and cooperation among jurisdictions potentially come in.

Largely because cooperation among jurisdictions — including through carbon markets — can lower abatement costs, it may be essential for the ultimate success of the agreement. This cooperation might take the form of international linkage, where by linkage I mean connections among policy systems that allow emissions reduction efforts to be redistributed among those systems.

Such linkage is typically framed as between cap-and-trade systems, but regional, national, and subnational policies are and will be highly heterogeneous, including not only cap-and-trade, but offset systems, carbon taxes, performance standards, and technology standards. We already see this sort of heterogeneity within the European Union’s own set of climate change policies, as well as within California’s suite of climate initiatives.

The good news is that linkage among highly heterogeneous policies is eminently feasible, as I have written about previously in this column, drawing on my research with Michael Mehling of MIT and Gib Metcalf of Tufts University. The even better news is that one part of the Paris Agreement provides a potential home for such international cooperation, linkage, and carbon markets — Article 6.

Provision for markets and such cooperation is implicit in Article 6.2, which allows for approaches involving Internationally Transferred Mitigation Outcomes, which can function as an accounting mechanism for trades, exchanges, and other forms of cooperation among countries.

There are important advantages to such cooperation, including financial savings by allowing firms to take advantage of lower-cost abatement opportunities in other jurisdictions, but there are also real concerns about linkage, including distributional impacts within and across linked jurisdictions.

Thinking about the ongoing climate convention negotiations, most types of heterogeneity — of policy instruments, level of political jurisdiction, and nature of NDC targets — do not present insurmountable obstacles to linkage, but some do present real challenges, and indicate the need for specific guidance as the Paris rulebook is written. But if guidance extends much beyond basic accounting rules, then restrictive requirements could actually impede effective cooperation. True to the nature and spirit of the agreement, less can be more!

So, as the negotiations proceed, a combination of common accounting rules and an absence of restrictive conditions can accelerate linkage, allow for broader and deeper climate policy cooperation, facilitate the emergence of a robust global carbon market, and — most important — increase the latitude of the parties to scale up the ambition of their long-term emission reductions.

Whether any or all of this will come to pass, we simply do not know as of now. As usual, only time will tell.

Linkage will prove essential for ultimate success of Paris Agreement.

Trump's Coal Mandate Ignores the Real Threat to National Security

Read more about Trump's Coal Mandate Ignores the Real Threat to National Security

Author

David P. Clarke - Writer and Editor

Writer and Editor

Current Issue

September-October 2018

Issue

Scientists understand that climate change looms ever more urgently as a cataclysmic threat to both the Earth’s biodiversity and human society. Rejecting the issue, however, the Trump administration isn’t content to merely halt or weaken Obama-era carbon regulatory programs and to withdraw from the global Paris climate agreement. In June we learned that the Department of Energy is weighing a proposal to help prop up failing coal and nuclear power plants that market forces would shut down, a policy DOE suggests is needed to avoid a power-generation shortage that might threaten national security.

But the closure of uneconomical plants “is not a national security issue,” says retired Vice Admiral Dennis McGinn, an advisory board member of the Center for Climate & Security, a nonpartisan institute guided by military and security experts. While perhaps once vital to U.S. national security, coal-fired power is no longer essential, and skewing markets to help the fossil-energy sector is generally a bad idea for the U.S. power portfolio and overall economy, McGinn says.

The Defense Department has long recognized climate change as a genuine threat to national security, McGinn adds. In the West, multi-year droughts and resulting possible wildfires hamper the ability of Army and Marine Corps bases to conduct realistic live-fire training. West Coast beach erosion and shifting harbor contours also constitute a threat. At the Hampton Roads military complex in Virginia, sea-level rise as well as the growing frequency and intensity of mid-Atlantic hurricanes are top concerns. Globally, climate change is a threat multiplier for instability, as recognized by the CNA Military Advisory Board in 2007 and again in 2014, when 11 retired generals and admirals concluded climate-related national security risks are “as serious as any challenges we have faced.”

When it comes to national security, DOD civilian and military leaders need the best possible data and objective analyses to understand security environments in which the military will have to operate five to 20 years into the future, McGinn says. For example, when various stresses destabilize societies, para-military groups, drug cartels, terrorist organizations, and others exploit the resulting power vacuum, and a U.S. military engagement could result or resources vital to national security could be threatened.

Regarding the proposal to bail out failing coal and nuclear plants, McGinn notes that an overlooked consequence of DOE’s reliance on the 1950 Defense Production Act’s authority as a basis for supporting the continued operation of uneconomical electricity plants is that billions of dollars would likely be diverted from defense budgets under such a policy, siphoning off more traditional national security funds.

While the Federal Energy Regulatory Commission’s June 12 hearing made clear that no grid reliability emergency exists, and diverse groups including conservative think tanks, Big Oil, and other energy organizations oppose DOE’s proposal, activists remain concerned that it nevertheless could have traction.

It is troubling that the administration has wrapped its proposal “in the national security flag,” says Gillian Giannetti, staff attorney with the Sustainable FERC Project, a clean-energy coalition, because “certain deferential standards can come with that.” But, even if DOE’s security assertions could make immediately defeating the proposal more difficult, the proposal lacks factual and legal support that ultimately will make it untenable, she adds.

According to Giannetti, dozens of reports have shown that grid outages are the result of distribution system weaknesses and grid elements outside of FERC’s direct authority that could be addressed at state and regional levels. Fuel security is not the reason the lights go out, she says, noting that less than 1 percent of outages were caused by fuel shortages. Real security issues, such as climate change impacts and cyber invasions, could take out distribution systems. But grid resilience and security could be enhanced by encouraging a broader, robust energy system that fully integrates distributed resources, such as wind and solar, with large-scale power generation, Giannetti says. DOE’s proposal would divert finite government resources from the real issues, she concludes, and ultimately consumers and taxpayers would pay for any bailout.

As DOD seeks objective information to understand the climate threat, a recent report by the progressive Center for American Progress, “Burning the Data,” finds that Trump requests would have cut federal climate and energy data and research funding 16.8 percent. Thankfully, appropriators rejected those cuts, though Trump is still trying.

Meanwhile, according to the National Oceanic and Atmospheric Administration, in 2017 the U.S. spent $306.2 billion on weather and climate-related disasters.

Almost no security or energy analysts support the president’s generation policy.

Should California Develop the State's Large Petroleum Resources?

Read more about Should California Develop the State's Large Petroleum Resources?

Author

Robert N. Stavins - Harvard Kennedy School

Harvard Kennedy School

Current Issue

July-August 2018

Issue

California is among the most aggressive jurisdictions in the world in its pursuit of public policies to reduce emissions of greenhouse gases. While the Trump administration in Washington is reversing the Obama administration’s climate policy achievements, California and other subnational entities are taking the lead in the development and implementation of meaningful domestic policies to mitigate the impact of human activity on the climate system.

However, California is a producer of crude oil. Is this inconsistent, or even counterproductive? Advocates have criticized Governor Jerry Brown, and proposed a ban on crude oil production within the state in furtherance of California’s climate policies. The thinking goes, crude oil production leads to environmental impacts, so how can it be allowed? The logic is flawed, and the prohibition — if adopted — would impose tremendous costs on the state with little or no environmental benefit.

As California has developed its climate policies, the need to balance the benefits of these policies with their economic and human consequences has always been a challenging issue. Achieving aggressive climate goals will not be cheap, so designing sensible, effective policies is critical. Simply adopting any and all restrictions that might achieve some emission reductions would unnecessarily raise the human cost of limiting GHG emissions.

At its heart, the climate problem arises because of carbon dioxide emissions associated with the use of energy and related services. We heat our homes in the winter and cool them in the summer using electricity and natural gas. We use gasoline to get to work and take vacations. As each country or state — including California — tries to reduce its GHG emissions, the policies and regulations adopted to achieve this end nearly always target the activities that lead to emissions: the generation of electricity, the use of transportation, and the conditioning of our living and working spaces.

The proposed ban on crude oil extraction would flip this on its head, focusing instead on the supply of a fossil fuel. But the simple reality is that the sources of fossil fuel supply are so ubiquitous that crude oil from other regions of the world will replace supplies from California, if California chose not to supply its own on-going needs. Oil and gas used to heat homes and to power vehicles comes not only from California, but from most every region of the globe. Many of these regions have expanding supplies of crude oil due to technological improvements, including the Bakken shale of North Dakota, and vast supplies available with relatively little effort, such as in the Middle East.

Advocates claim that reduction of California crude oil production would reduce global consumption of crude — a claim of questionable validity. But that is not even the right question. There are many things that can be done to reduce GHG emissions, and a sensible, affordable, and sustainable policy will be one that achieves reductions at the lowest cost. Even if restricting California’s oil production might reduce global crude consumption, California would certainly bear all of the economic consequences of this policy, as the state would then rely solely on crude oil imports.

In fact, a restriction on California’s crude production is unlikely to reduce GHG emissions within the state. California’s total GHG emissions are limited by the cap of its GHG cap-and-trade system. The most a restriction on California’s crude production can do is to increase costs, while achieving little or no incremental improvement in the emissions that cause climate change.

Moreover, supply-side restrictions can limit technological progress that can have very positive economic and environmental consequences. The same advocates oppose fracking, but the innovative combination of hydraulic fracturing in shale and horizontal drilling has led both to tremendous economic benefits by expanding supplies of low-cost domestic energy and reducing energy imports, and to environmental benefits by allowing lower-carbon natural gas to displace higher-carbon coal in the generation of electricity across the United States.

By focusing on policies aimed at achieving the appropriate policy goal of reducing GHG emissions — rather than trying to choose winners and losers among technologies and energy sources used to achieve those goals — California can achieve its climate policy goals in ways that are environmentally effective, economically sensible, and ultimately sustainable. In my view, Governor Brown merits compliments rather than criticism for Sacramento’s progressive environmental and energy policies.

Should California develop the state's large petroleum resources?

William O. Douglas's Former Clerk Sitting on Key Climate Change Case

Read more about William O. Douglas's Former Clerk Sitting on Key Climate Change Case

Author

Richard Lazarus - Harvard University

Harvard University

Current Issue

July-August 2018

Issue

A path-breaking climate case now pending in federal district court, The People of the State of California v. BP P.L.C., has surprising roots in the environmentalists’ most celebrated Supreme Court justice. William O. Douglas was an uncompromising green. He served on the Court for almost 37 years, longer than any other justice. Yet, to his great unhappiness, failing health compelled Douglas to resign in 1975 just when modern environmental law in the United States was emerging in full force.

Justice Douglas’s former law clerk, Judge William Alsup, is the presiding judge in the BP case, in which San Francisco and Oakland are suing under California public nuisance law the largest producers of fossil fuels. The complaint’s gist is that the defendants, “despite long-knowing that their products posed severe risks to the global climate,” nonetheless “produced fossil fuels while simultaneously engaging in large scale advertising and public relations campaigns to discredit scientific research on global warming.” The complaints seek an “abatement fund” to pay the costs of addressing rising sea levels.

The case before Judge Alsup is one of several such state common law climate cases recently brought by private tort plaintiff firms. The lawsuits are modeled after the successful multimillion-dollar litigation brought by states against the tobacco industry. Like the tobacco litigation, the climate complaints allege that the relevant industry knew and hid from the public scientific studies that demonstrated the harm its product was causing.

The new litigation is deliberately different from the climate nuisance cases rejected by the Supreme Court in American Electric Power Co. v. Connecticut in 2011. In AEP, a unanimous Court held that the federal Clean Air Act displaced the availability of a federal common law nuisance action for injunctive relief to limit the greenhouse gas emissions from the nation’s power plant industry.

First, these latest lawsuits are expressly based on state, not federal common law. They accordingly both avoid AEP’s holding that the federal common law of nuisance has been overridden by the CAA and take effective advantage of the act’s express preservation of state law causes of action.

Second, the defendants are the largest fossil fuel producers and not, as in AEP, the largest emitters. The suits accordingly do not, as in AEP, seek redress on the theory that the defendants themselves emitted unreasonably high levels of greenhouse gases. They instead allege that unduly high levels of greenhouse gas emissions resulted from defendants’ knowing concealment of scientific information that might well have prompted the public to demand, and the government to require, significant emissions reductions decades ago.

It is far too soon to discern whether these ambitious theories of tort liability will be successful. But, in early skirmishes, there has been a noteworthy development.

In February, Alsup granted the defendants’ motion to remove the cases from state court. The plaintiffs had argued removal was inappropriate because their cases relied exclusively on state and not federal law. Alsup held that removal was appropriate because plaintiffs’ complaint, though couched in terms of state nuisance law, must be understood to be based on federal common law. Relying on the Supreme Court’s 1972 ruling in Illinois v. City of Milwaukee, Alsup reasoned that it made no sense to have a lawsuit with such a broad geographic and national sweep be governed by state rather than federal common law.

Yet, the defendants who won their removal motion may regret their victory. The plaintiffs seem to be embracing their defeat. The likely reason for the reversal is that, in granting removal, Judge Alsup indicated that, unlike in AEP, a federal common law of nuisance action against fossil fuel producers might not be displaced by the CAA. Alsup’s suggested distinction is that the current cases base tort liability on concealment of information, which, unlike emissions levels, is not regulated by the federal statute.

Nor did Alsup stop there. He further ordered the parties to provide his court this past March with a five-hour “global warming and climate change tutorial.” A math major in college, Alsup pummeled the scientists and Chevron’s attorneys with specific questions on climate science.

Whether Alsup’s initial embrace of the case will lead to a favorable ruling for plaintiffs remains unclear. A different federal judge in California rejected an identical removal petition filed in another batch of municipal climate nuisance cases. What is clear, though, is that Judge Alsup’s former boss would be pleased. The author of the Supreme Court ruling in Illinois v. City of Milwaukee upon which Alsup relied for his ruling endorsing federal common law of nuisance was Douglas, of course, and Alsup was his law clerk at the time of that 1972 ruling.

William O. Douglas's former clerk sitting on key climate change case.

On Being a Trigger for Peace

Read more about On Being a Trigger for Peace

Author

Ken Conca - American University

Geoff Dabelko - Ohio University

American University

Ohio University

Current Issue

July-August 2018

Issue

Ken Conca

Environmental change can be a trigger for conflict. It heightens our sense of group difference. It can make us think about hunkering down rather than reaching out. It tempts us to visualize a world of scarcity and of constraint rather than a world of opportunity and transformation. People assume scarcity begets grievances and grievances beget violence. Our work challenges that determinism.

I would never deny the potential for violence around environmental change. According to Ban Ki-Moon, the former secretary general of the United Nations, climate change “not only exacerbates threats to international peace and security, it is a threat to international peace and security. . . . Mega-crises may well become the new normal.” The human rights organization Global Witness has built a database on the assassinations of environmental activists in the last 10 years or more. The number is large.

What we risk losing if these narratives are only about security and conflict is the possibility that we can instead cooperate around them. They can bring people together, even people who may not be comfortable working together. They can lead us down a path of peace.

The Earth Summit in Rio de Janeiro in 1992 was the high-water mark for international environmental cooperation. By the late 1990s, when the international community was planning a 10th-anniversary summit meeting in Johannesburg, the bloom was off the rose of international environmental cooperation. The idea of welfare gains and sustainable development was not strong enough to get governments to live up to the commitments they had made in Rio. Many environmental policymakers and activists started casting around for another framework that might give governments that sense of urgency. Environmental security as a concept was born in that quest for agenda setting.

The Cold War was over. It was a time when people who thought about conflict and security were open to new ideas. There was a perception, which today seems quaint, that we would realize a peace dividend, that those massive resources that went into the preparation for war could be redeployed for a more affirmative social purpose.

It was the combination of the quest for urgency and the fluidity in the security space that produced this idea of environmental security. In the run-up to Rio+10, there were governments and activists who wanted environmental security to be the dominant framework for the dialogue and for policy initiatives. In my experience, when the North finds a security incidence in the South, the South would be well advised to duck. They fought too hard to throw off colonialism and have sovereignty over their natural resources to see it be framed simply as someone else’s security agenda.

It also bothered Geoff Dabelko, as the newly minted director of the Environmental Change and Security Program at the Woodrow Wilson International Center for Scholars. Out of this strategic concern an idea occurred to us. If the environment can be a trigger for conflict, maybe environmental imperatives can be a trigger for peace.

There are three premises to our work.

The first is that because environmental issues ignore human boundaries, they demand cooperation across those boundaries, whether they are between nations, or clans, or identity groups, or neighborhoods, or the people who live upstream and upwind and those who live down. That interdependence can be used to create cooperative incentives, even among actors who are not inclined to cooperate with each other, even among actors in conflict.

The second premise is that the environment can create in people a deeply rooted sense of place. Maybe that can be used to strengthen people’s shared identities, or at least to soften some of the more divisive and conflict-oriented identities that can also take root in specific places.

And third: environmental problems are technically complex, and they challenge us to think forward into an uncertain world. Maybe that uncertainty creates opportunities for learning together. And maybe that learning can be used as a tool to build trust again among parties who might not be inclined to trust.

We never say that environmental cooperation will inevitably lead to peace. Environmental cooperation sometimes only leads to more efficient resource plundering. We instead assess whether particular types of environmental cooperation might be used strategically to make peace by creating cooperative incentives, or by enhancing trust, or by reworking conflict-laden identities.

There is now a large body of evidence that this can in fact be done. There are refugee camps where scarcities of water, or of firewood, or other resources trigger conflict, either within the camp or between the camp and the host community. But there are just as many where we see people developing creative, cooperative solutions. We know that climate change and water scarcity can cause tensions and conflicts between herders and farmers in the world’s dry grassland regions. But we also see creative adaptation under those same stresses. Farmers start to herd, herders start to farm, their children start to intermarry. Grievances are not the only factor. Much depends on our capacity to channel those grievances as productively.

A related observation is that much of what we know is not derived from the work of scholarly research. It is derived from practice.

There is a lot of rich experimentation by communities, by donors, by nongovernmental organizations, by intergovernmental organizations like UN Environment. That raises questions about selection bias. Are people only working in places where it’s easiest? It raises questions about the quality of the data, about long-term effects after the NGOs or the donors go away. It raises questions about community ownership of these processes.

A third observation is that there is not enough attention paid to the institutions that are tasked with implementing these initiatives, such as the UN Security Council. We have to study the institutions that are supposed to deliver on these programs.

Peace is not always the goal. The Palestinians we work with in the West Bank don’t want to talk about peace. They want to talk about justice, they want to talk about dignity. In Flint, Michigan, when the taps started spewing toxic water, those people weren’t interested in peace, either. People who are most directly involved in these conflicts often do not see peace as the principal challenge or the principal problem.

And on the other hand we know that violence can shred any possibility for attaining these other social goals. Peace, even in the most limited sense of forestalling violence, is a very good thing. It’s essential to the realization of other goals. But it’s often not the goal of most of the people who are involved. And we scholars or practitioners who come bearing peace strategies without an emphasis on justice will be looked at skeptically.

Geoff Dabelko

Environmental peacebuilding is often saddled with unrealistic expectations. Some observers ask, Why try environmental peacebuilding if you are not going to solve the whole conflict between India and Pakistan? Where is the evidence environmental peacebuilding works if you are not resolving a conflict? Is it not better to wait to address environmental conditions, goes the argument, until the country is rich, peaceful, and democratic? In this way of thinking, the environment is viewed as a luxury item in post-conflict settings rather than a critical input to saving lives, jump-starting agrarian livelihoods, and spurring economic activity.

Some early practitioners of environmental peacebuilding came from unexpected quarters. Fears of radioactive contamination in the Barents Sea provided an avenue for Russian, Norwegian, and American militaries to interact as the Cold War ended. The resulting Arctic Military Environment Cooperation Program included scientific assessment and safer storage of spent nuclear materials in the Russian Northwest. While radioactivity was a real concern, the collaboration between opposing militaries provided a means to interact regularly on less divisive topics. The program helped U.S. and Norwegian leaders figure out who was in charge of the former Soviet military in the uncertain transition period. Joint scientific assessment and environmental risk management were tools to help build confidence and a post-Cold War peace.

Environmental peacebuilding has faced numerous challenges, and early iterations demonstrated tangible shortcomings. In Johannesburg in 2002, at the World Summit on Sustainable Development, only one speaker on a well-attended environment and security panel got questions, many of them hostile. A representative from the Peace Parks Foundation fielded questions about his organization’s peace park efforts in post-Apartheid southern Africa. Signing ceremonies with Nelson Mandela and other heads of state made for good optics, but the beneficiaries of these early transboundary conservation efforts were primarily political elites and large business owners. Local people bore the cost of increased human-wildlife conflict that came with the sudden removal of border fences. They reaped few of the benefits of increased tourism. Fortunately, many early environmental peacebuilders changed their programs, learned lessons, and adapted subsequent efforts inside and outside southern Africa.

The aftermath of the 1990s Yugoslavian civil war was an important place for UN Environment and its post-conflict assessments to make concrete steps toward environmental peacebuilding. Like AMEC, the UN took advantage of the relative lack of controversy around objective scientific assessment in post-conflict settings to tackle the peace and conflict dimensions of the environment and natural resources.

UN Environment identified environmental hotspots and natural resource management steps critical to restarting economies. Their comprehensive reports, done with the permission of host governments, assigned some degree of responsibility for environmental damage and helped formulate a plan forward. The plan was a little more subversive than we realized at the time. UN Environment assessed the role natural resources may have played in starting, extending, and recovering from conflict. It helped formulate a possible foundation for peace through environmental management institutions.

Those field assessments were fairly straightforward steps compared to the politics that surround peace and conflict issues at the United Nations. UN Environment still had many battles about environmental peacebuilding at its headquarters in Nairobi and at UN headquarters in New York. Member governments routinely assert their right to sovereign control of resources as an impediment to engaging in environmental actions designed to prevent conflict in particular. They commonly maintain that environmental issues are not security issues but instead economic ones better suited to be addressed by the economic and environmental bodies at the UN.

Despite these regular objections, those UN-focused efforts have had success. However, I would flag one dilemma raised by this example. I call it “What’s in a name?” What we call environmental peacebuilding really matters to the parties on the ground. Peacebuilding as an enterprise is inherently politically sensitive. The advantage of the environmental sector is often the issues are less so as illustrated by the earlier examples. But labeling an effort as environmental peacebuilding rather than environmental management can make the goal harder to achieve. Parties assume defensive positions and the conflict is renewed rather than reconciled. If making the peacebuilding objectives explicit makes it harder to achieve, how do we do it without that label? When do you use that label explicitly and when is it a critical but unstated goal?

Some have reacted that such a labeling decision can be troubling, since they value transparency and participation among all stakeholders from the outset. It raises challenging tradeoffs for small group negotiations and less transparent approaches versus all-inclusive negotiations in public. In the age of diplomacy by press release and even tweet, this transparency can actually make it harder to achieve success.

Let me share one more case to illustrate the environmental peacebuilding work yet to be done. In this example, practitioners are asking questions of researchers and scholars that we cannot yet answer definitively. I have worked closely with the U.S. Agency for International Development and their Conflict Management and Mitigation team. Many of you have had similar experiences with many other partners in the field. How do we practice, how do we pursue, how do policymakers grapple with environmental peacebuilding within a climate change context?

Twenty-five years ago, climate change was seen as a long-term, diffuse, incremental, and future topic for environment and security scholars and practitioners. The existential threat to small island states, for example, was not yet widely perceived. Steps to address climate change and security were largely separate conversations.

Today, the script has flipped. Since 2007, climate change has become the primary entryway into the environment and security conversation, almost to the exclusion of other important environment and natural resource topics. USAID’s conflict management staff now evaluate the agency’s climate change assistance by asking two questions: Is this climate-related investment going to create new conflict or contribute to existing conflicts? and, How can it be designed to contribute to additional development or peace-supporting solutions? If this investment is in a fragile state, or a conflict-affected state, how can we do environmental peacebuilding with this climate intervention?

Indeed, both scholars and practitioners need to develop better answers to these questions even if one can easily claim climate adaptation and mitigation efforts remain limited within countries and the international community. Our argument should be for finding ways to capture co-benefits and the triple bottom line even as we experiment and develop a research base for better knowing what works. In a financial resource-constrained policy environment, let us collaborate to achieve climate, poverty alleviation, and peacebuilding goals together with coordinated responses.

These are the challenges before us. There has been promising progress. There is lots more to do. TEF

AL MOUMIN AWARD WINNERS ❧ A colloquy on how to use environmental cooperation to alleviate, end, and hopefully prevent armed conflict, by two veteran “soldiers” in the field.

Mixing Private Action and Climate Policy

Read more about Mixing Private Action and Climate Policy

Author

G. Tracy Mehan III - Antonin Scalia Law School, George Mason University

Antonin Scalia Law School, George Mason University

Current Issue

May-June 2018

Issue

Distinguishing government from governance, identifying the separate yet complementary roles of the private and public spheres, say, in the realm of environmental management, and thinking seriously about the opportunities and barriers of an integrated or collaborative approach to confronting the challenges of the day — none of this would have made any sense to a citizen of the Roman Empire in the time of Augustus.

The classical view did not recognize anything like civil society beyond the Empire itself encompassing both political, social and religious aspects. It was only after centuries of struggle between Church and Empire, state and society, and the emergence of varying degrees of individualism, did the concept of a civil order and institutions (church, family, community, labor unions, corporations), antecedent to and independent of the state, come to pass.

Without civil society, government and governance are essentially the same. With civil society government is simply part of the complex web of governance by which a society orders itself as well as the state. Thus, no longer is governance viewed as a synonym for government.

The late Elinor Ostrom of Indiana University, the first woman to receive the Nobel Prize in economics, did pioneering research on a plethora of collaborative approaches to resource management — governance if you will — around the world in ways that mitigate the Tragedy of the Commons not imagined by Garrett Hardin, who reduced everything to either regulation or privatization. She demonstrated that user-managed fish stocks, pastures, woods, lakes, and groundwater basins, in many countries and cultures, are able to establish norms of behavior, sophisticated rules for decisionmaking, and even enforcement mechanisms. Her classic book on the subject is Governing the Commons: The Evolution of Institutions for Collective Actions (1990).

Given the state of environmental protection today, with many problems dispersed throughout society, the landscape, the air- and watershed, involving numerous small sources or causes of harm, all within the control of private parties, households, farms and institutions, the old top-down, hierarchical model, driven by a federal government much less revered now than in the 1970s, seems inadequate.

Writing in 1997, Daniel Esty and Marian R. Chertow of Yale called for the “next generation” of environmental policies “that are not confrontational but cooperative, less fragmented and more comprehensive, not inflexible but rather capable of being tailored to fit varying circumstances.” See introduction to Thinking Ecologically: The Next Generation of Environmental Policy (1997). They noted the value of keeping pace with the important elements of “institutional realignment that are occurring in society. Notably, the role of government is narrowing, the private sector’s responsibilities are broadening, and nongovernmental organizations, from think tanks to activist groups, are increasingly important policy actors.”

Michael P. Vandenbergh and Jonathan M. Gilligan, respectively, professors of law and engineering at Vanderbilt University, argue strenuously for private action and governance specifically, in the context of climate change and the flagging efforts of governments, especially the United States, to take meaningful action. They are not anti-governmental action. But they believe that time is flying and private action provides a realistic, interim strategy until an effective political consensus develops before catastrophe befalls the world. Their Beyond Politics: The Private Governance Response to Climate Change is an imposing work of academic scholarship (e.g., over 200 footnotes in one chapter alone). But their engaging, accessible writing style makes the slog a pleasant one for the diligent reader. It might have been subtitled Making a Virtue of Necessity given the realities of climate politics, global aspirations for economic growth, and the complexity of the science.

In the very first line of their preface, Vandenbergh and Gilligan cite Gallup for the proposition that two thirds of Americans believe that big government is the greatest threat facing the United States. So any systematic regulation to mitigate climate change faces predictable resistance. The authors seem to believe that the Trump administration’s rollback on carbon regulation is a temporary phenomenon, but they astutely observe that the 2009 Waxman-Markey cap-and-trade bill failed “even though the party that espouses support for climate mitigation controlled the White House and both bodies of Congress — a failure that seems remarkable until it is viewed against the backdrop of two decades with only one major new pollution control statute.”

“Only in the past several years have scholars begun to recognize that a fundamental shift has occurred away from federal legislation as a social response to environmental threats, a shift that became much more apparent with the 2016 elections,” write the authors. They might also have noted the 1997 vote of 95-0 in favor of the Byrd-Hagel Resolution in the U.S. Senate against signing onto the Kyoto Protocol.

Vandenbergh and Gilligan make a sincere, passionate, even eloquent case to both conservative and liberal skeptics, the former skeptical as to climate policy in general and big government in particular, the latter concerned about undermining the case of strong governmental action on climate.

Essentially, these authors see zero chance of the community of nations meeting the goal of stabilizing global temperature at 2 degrees Celsius as called for in the Paris Agreement. “In fact, the Paris Agreement, even if all commitments are fulfilled, will allow an increase in global emissions of roughly 34 to 46 percent in 2025 over 1990 levels.” Even with full implementation of all Paris commitments, the globe is likely to see temperatures of more than 3 degrees Celsius above pre-industrial ones.

The Vanderbilt professors look to private action to achieve “a significant fraction of the necessary reductions — carbon dioxide emissions equivalent to roughly 1 billion tons out of the 5.5 billion tons per year of reductions necessary over the next decade to close the Paris Gap.” They view this strategy as “buying time for a more comprehensive government response” at some indeterminate point in the future, presumably post-Trump. They do not posit “an all-or-nothing argument that the world must choose between public and private governance. In our view, they are complementary, and we should pursue both.”

The authors cite many instances of effective private action, notably major institutions and corporations such as Walmart, Microsoft, Google, and the like, corporate giants which can lean on their suppliers for emission reductions, practices that could be scaled up nationally and internationally. They take heart in Elinor Ostrom’s concept of “polycentric governance to reduce GHG emissions” which she first applied to the management of water resources and the provision of municipal services. This refers to the use of multiple scales of government and nongovernmental organizations to address collective action problems, such as managing common pool resources.

(Readers of The Environmental Forum may recall Professor Vandenbergh’s article, “The Drivers of Corporate Climate Mitigation,” in the January/February issue, providing a succinct statement of the case for private action in that realm.)

Big fans of Pope Francis and his 2016 encyclical addressing the moral dimension of climate change, the authors view the Catholic Church as not just an influencer on government, but also “a private regulator of its energy suppliers and emissions in and of itself.” Based on their back-of-the-envelope calculations, Catholicism, with its many churches, schools, hospitals, orphanages, and missions, would be among the top 50 largest emitters in the world if it were a country. Whether or not such a vast collection of bishoprics, dioceses, religious orders, lay institutions, and the like could ever be subject to such centralized management, notwithstanding its unity of doctrine and practice, it is an interesting thought experiment, as the Germans say.

Vandenbergh and Gilligan aim to ground their optimism on sound reasoning, to wit: “Our view that many households and corporations will respond to private initiatives by reducing emissions does not require unrealistic assumptions about altruism. Instead, the opportunity arises because private initiatives can stimulate efficiency improvements that have not yet been exploited because of market and behavioral failures. Private initiatives also can draw on existing levels of support for climate mitigation in ways that governments cannot. These initiatives also can address solution aversion among moderates and conservatives, bypassing resistance to government climate efforts that arises from concerns about big government. At the international level, private governance initiatives can supplement the slow and cumbersome international negotiations process. Private initiatives also can harness supply chains to transfer pressure for lower-carbon goods and services across international boundaries, circumventing sovereignty and free-trade concerns and increasing support for mitigation in developed and developing countries.”

The “principal barrier” is “conceptual,” i.e., “the need for opinion leaders, corporate and NGO leaders, and philanthropists to grasp the magnitude of the opportunities available to them.”

Beyond Politics is provocative and challenging, well-sourced and full of insights as to motivational approaches to household and institutional behavior. Yet, nowhere in the dozen or so pages of the book’s index will the reader find any references to either adaptation or resilience in the face of climate change. The authors chose to focus exclusively on mitigation. Society, however, may be forced to consider other options given the stark political and economic realities of climate policy.

On private action and climate policy.

Subscribe to Climate Change