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A Climate Constitution in the Courts and the Streets

What’s the Constitution got to do with climate? Current legal cases are now addressing that question. 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 jumpstart climate protection?

A constitutional right

Early in the 21stcentury 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 caseJuliana 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 rulemaking 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 intergenerational 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 unenumerated 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 protestors 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 protestors 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 14thamendment 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 14thamendment’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 andRoe 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 pushback 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.

 

More articles by:

Jeremy Brecher is an historian and co-founder of the Labor Network for Sustainability. A new, post-Paris edition of his Climate Insurgency: A Strategy for Survival was published by Routledge.

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