If the Courts Won’t Protect the Climate, the People Must
Protecting the right of all people to a stable climate and enforcing the obligation of governments to protect the climate as a public trust is a duty we all owe ourselves.
In the 2007 Supreme Court case Massachusetts v. EPA, the state of Massachusetts successfully sued the U.S. Environmental Protection Agency to require it to address greenhouse gas [GHG] pollution under the Clean Air Act. In this summer's West Virginia v. Environmental Protection Agency case the Supreme Court forbade the EPA to implement just the kind of climate protection that followed from Massachusetts v. EPA. In a 6-3 decision, the Supreme Court held that the EPA did not have authority to implement emissions caps that would shift power generation from coal to renewables like wind and solar energy.
While the decision only applies directly to Obama's never-implemented 2015 Clean Power Plan, its implications are far-reaching. A dissent by Justice Elena Kagan described the decision as depriving the EPA of the power Congress gave it to respond to "the most pressing environmental challenge of our time." Even though "climate change's causes and dangers are no longer subject to serious doubt," and even though "if the current rate of emissions continues, children born this year could live to see parts of the Eastern seaboard swallowed by the ocean," the majority opinion stripped the EPA of "any effective approach for addressing climate change."
The decision means that the fossil fuel industry has the right to destroy the climate, and that government agencies that attempt to prevent them from doing so by requiring a shift from fossil fuel to renewable energy are acting illegally. The court ruled in essence that the right of fossil fuel corporations to make a profit trumps the right of human beings to life, liberty, and survival for themselves and their posterity.
The right to a stable climate
There is a radically different interpretation of the implication of the Constitution for climate protection. In a 2016 ruling that has never been reversed but whose implementation has been delayed for years, Judge Ann Aiken of the federal district court in Oregon declared 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."
The ruling came in Juliana v. United States, a case brought on behalf of 21 youth plaintiffs by the nonprofit Our Children's Trust. The Trump and now the Biden administration have gone to extraordinary lengths to prevent the implementation of this ruling and to prevent any other court from even hearing the case. Our Children's Trust is nonetheless continuing its efforts to force courts to halt the complicity of federal and state governments in climate destruction.
Judge Aiken ruled 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 ruled not only that all people have a right to a stable climate, but that governments have an obligation to maintain climate stability. This duty is based on the "public trust doctrine," a fundamental legal principle that defines essential natural resources as common property of the people, which governments have a fiduciary duty to protect. She quoted a classic 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."
Constitutional Insurgency
How should the climate protection movement, and everybody concerned about climate catastrophe, respond to the current Supreme Court's enforcement of the fossil fuel industry's "right" to destroy a "climate system capable of sustaining human life"? I believe the answer is a systematic repudiation of the use of law to perpetuate climate destruction. Such a repudiation can be a critical part of enforcing climate protection.
In the face of the legal system's promotion of climate catastrophe, there is developing what I have called a "nonviolent constitutional insurgency" to protect the climate. The idea of a constitutional insurgency was developed by law professor and historian James Gray Pope to describe a social movement that rejects current constitutional doctrine, but that "rather than repudiating the Constitution altogether, draws on it for inspiration and justification." On the basis of its own interpretation of the US Constitution, such an insurgency "goes outside the formally recognized channels of representative politics to exercise direct popular power, for example through extralegal assemblies, mass protests, strikes, and boycotts." It may hold such actions legal, even though the established courts condemn and punish them. While the term "insurgency" is generally associated with an armed rebellion, a nonviolent insurgency (in contrast, for example, with the January 6, 2022 insurrection at the U.S. Capitol) eschews violence and instead expresses power by mobilizing people for various forms of nonviolent mass action.
Pope recounts how the American labor movement long insisted that the right to strike was protected by the Thirteenth Amendment to the US Constitution, which forbids any form of "involuntary servitude." Injunctions to limit strikes, it held, were therefore unconstitutional. While courts disregarded this claim, the radical Industrial Workers of the World told its members to "disobey and treat with contempt all judicial injunctions," and the "normally staid" American Federation of Labor maintained that a worker confronted with an unconstitutional injunction had an imperative duty to "refuse obedience and to take whatever consequences may ensue."
There are many instances when claims to constitutional rights, backed by popular insurgencies, have led to judicial reinterpretation of the law. It is difficult to imagine that courts would have legitimated the Wagner Act, overthrown the "separate but equal" doctrine in the Brown decision, established women's reproductive rights in the Griswold and Roe cases, or more recently supported the right of gay people to marry in Obergefell, without the sit-down strikes, the civil rights movement, the women's movement, or the gay rights movement.
The strategy of the climate insurgency is based on Gandhi's dictum that "even the most powerful cannot rule without the cooperation of the ruled." The climate insurgency aims to withdraw the cooperation of the people from the perpetrators and enablers of climate destruction. It uses nonviolent direct action—aka civil disobedience—to express popular refusal to acquiesce in the burning of fossil fuels and to force a transition to climate-safe energy. It defends such action as both the right and the duty of the people—and proclaims climate destruction to be both illegal and unconstitutional. It mobilizes both those who are willing to engage in activities the authorities claim to be illegal and the wider population who support their objectives. It seeks to create an irresistible momentum of escalating popular action for climate protection.
What does climate insurgency look like?
The climate insurgency is under way in many places and in many ways. The "blockadia" direct action resistance to the Keystone XL and Dakota Access Pipelines provided dramatic examples. So did the global Break Free From Fossil Fuels week of action following the Paris climate summit, described as "the largest ever global civil disobedience against fossil fuels."[3] So have the Extinction Rebellion actions that have provoked thousands of mass arrests around the world.
While the development of climate insurgency was impeded by the COVID pandemic, it may now be reviving in the face of burgeoning climate threats. In early April, for example, over 1000 scientists in 25 countries donned white lab coats and engaged in acts of non-violent civil disobedience. Calling themselves Scientists Rebellion, they are part of "a decentralized international movement that calls for non-violent direct action to push world governments to act on climate change." Targeting governmental, scientific, and corporate institutions, the protestors and organizers believe disruption is the only option left.
In Los Angeles, 100 police in riot gear converged on a group of four non-violent protesters who had locked themselves to the doors of a JP Morgan Chase bank. Among them was Dr. Peter Kalmus, a NASA climate scientist with the Jet Propulsion Laboratory. Kalmus had tears in his eyes as he pleaded for justice for his children and the children of the world who will inherit this climate disaster. "We're not joking, we're not lying, we're not exaggerating," Kalmus said. "This is so bad that we're willing to take this risk and more and more scientists and more and more people are gonna start joining us." He and three other scientists were thereupon arrested.
If this represents a global nonviolent climate insurgency, it is only at its beginning. Kalmus says, "We need a billion climate activists. I encourage everyone to consider where we're heading as a species, and to engage in civil disobedience and other actions. The time is now. We've waited far too long. Mobilize, mobilize, and mobilize. Mobilize before we lose everything."
Is the Supreme Court in a "state of war" with the people?
In the long struggle ahead, individuals and governments should never accept the legitimacy of court rulings that authorize the destruction of the earth's climate. We should maintain that West Virginia v. EPA is itself unconstitutional and corrupt. Unconstitutional because it denies the right of the people and the obligation of the government to climate protection. Corrupt because it is made by judges who have been nominated and confirmed by politicians who are directly in the pay of the fossil fuel corporations and represent a political system dominated by the fossil fuel industry.
Protecting the right of all people to a stable climate and enforcing the obligation of governments to protect the climate as a public trust is a duty we all owe ourselves, each other, and future generations. If the courts fail to provide such protection, the people have a right and a duty to enforce that obligation by their own action.
In his Second Treatise of Civil Government, perhaps the single greatest influence on the shaping of American government, John Locke wrote that "whenever the legislators endeavor to take away, and destroy the property of the people" they "put themselves into a state of war with the people," who are thereupon "absolved from any farther obedience" and are "left to the common refuge, which God hath provided for all men, against force and violence." When legislators "either by ambition, fear, folly or corruption, endeavor to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people," by their "breach of trust" they "forfeit the power the people had put into their hands for quite contrary ends." Then that power "devolves to the people," who have a right to "provide for their own safety and security."
If this be true for legislatures, how much truer is it for unelected, fossil-fuel-corrupted courts?