Community Rights: Because Climate Conferences Won’t Stop Climate Change

Thomas Linzey January 17, 2017

Middleflield Neighbors, a grassroots anti-fracking group from the small town of Middlefield, N.Y., demonstrate their opposition to fracking within their town's borders. In 2012, though two state supreme courts upheld local zoning laws that banned fracking within three upstate New York towns (including Middlefield), oil companies sued the municipalities and won. This has been happening all over the country.

Nations around the world have been meet­ing for more than two decades to solve the loom­ing prob­lem of cli­mate change. Dur­ing their most recent gath­er­ing — held last Novem­ber in the Moroc­can city of Mar­rakesh — they intend­ed to iron out some of the glar­ing issues remain­ing from the much-laud­ed 2015 Paris Agreement.

In Paris, coun­tries agreed on a goal to lim­it glob­al warm­ing to two degrees Cel­sius above pre-indus­tri­al lev­els. This is a thresh­old that sci­en­tists gen­er­al­ly agree is the point of no return. Yet, shock­ing­ly, almost every­one agrees that the Paris accord — even if com­plete­ly enforced — would fail to achieve that goal.

The arro­gance problem

There’s an even more basic prob­lem, though, which aris­es from our gen­er­al arro­gance about the plan­et itself. That arro­gances lies in our assump­tion that we have all of the infor­ma­tion that we need to make accu­rate pre­dic­tions about the earth’s inher­ent­ly com­plex cli­mate systems.

What’s becom­ing clear, how­ev­er, is that we bare­ly under­stand how these sys­tems work; and fur­ther­more, that there are fac­tors at play which now make even the most dis­mal pre­dic­tions of cli­mate sci­en­tists down­right optimistic.

Greenland’s ice sheet is a good exam­ple. Cli­mate sci­en­tists pre­dict­ed a cer­tain amount of melt­ing and decay of the sheet, but those pre­dic­tions are prov­ing to be far wide of the mark. The death spi­ral of the ice sheet has accel­er­at­ed in ways that sci­en­tists sim­ply couldn’t predict.

As it has since 2002, the Green­land ice sheet con­tin­ued to lose mass in 2016. (Info­graph­ic: noaa​.gov)

So, first, we have a glob­al cli­mate agree­ment that won’t stop the huge impacts of glob­al warm­ing. And sec­ond, there’s a very high like­li­hood that even the Paris Agree­ment, such as it is, is based on mod­els that we erro­neous­ly believe are correct.

Some sci­en­tists pre­dict that the melt­ing of the Green­land ice sheet alone could pro­duce four feet of ocean rise. That’s enough to put big chunks of coast­line around the world underwater.

Yet we don’t have to wait to see the impact of glob­al cli­mate change. Small island nations have already become the front line. The gov­ern­ments of Palau, Kiri­bati, Fiji, and the Mal­dives are work­ing to buy land in oth­er coun­tries to relo­cate their res­i­dents. Rather than just a truth that is incon­ve­nient,” these nations face the prospect of being wiped com­plete­ly from the world map.

Ris­ing sealevels are over­tak­ing the Pacif­ic Island nation of Kiri­bati. They aren’t alone. (Pho­to: 350​.org)

One would think that such a cog­ni­tive dis­so­nance — island nations who con­tributed the least to glob­al warm­ing are the ones being dri­ven to extinc­tion by those who con­tributed the most — would lead to real push-back by the peo­ple most affect­ed. But while those nations have been vocal advo­cates for glob­al action at inter­na­tion­al cli­mate change gath­er­ings, they have failed to take more con­fronta­tion­al actions against the nations that are now killing them off. Part of the rea­son is their depen­dence on for­eign aid from the very nations that are caus­ing their demise, and the sad lega­cy of colo­nial­ism that has left deep finan­cial ties between the island nations and their for­mer colonizers.

It’s a sur­re­al moment: Indi­vid­u­als and nation-states would gen­er­al­ly employ the nor­mal rules of fault and lia­bil­i­ty to deal with these harms. Yet those rules — seem to be sus­pend­ed. And nature and ecosys­tems have gen­er­al­ly been for­got­ten in the mix.

The right to climate

In 2010, a small group of lawyers began work­ing with gov­ern­men­tal offi­cials in the Mal­dives to pro­pose anoth­er course. Small island nations would have gone on the offense, using their leg­is­la­tures and gov­ern­ments to hold oth­er nation­al gov­ern­ments and cor­po­ra­tions account­able for cli­mate change impacts. For the first time, these island nations would have sought not only direct com­pen­sa­tion from those actors for past and cur­rent harms, but court orders stop­ping cli­mate-change-caus­ing emissions.

While not sup­plant­i­ng inter­na­tion­al agree­ments like the Paris accord, advo­cates of this work would cre­ate a dif­fer­ent path. They would rely on tra­di­tion­al rules of lia­bil­i­ty, com­pen­sa­tion, and injunc­tive relief to stop ongo­ing harm. They would oper­ate par­al­lel to those car­ry­ing out the imple­men­ta­tion of glob­al agree­ments, hedg­ing bets on which path can stop island nations from dis­ap­pear­ing into the sea.

In 2009, Mal­dives Pres­i­dent Mohamed Nasheed signs a dec­la­ra­tion call­ing for a glob­al reduc­tion in car­bon emis­sions dur­ing the first under­wa­ter cab­i­net meet­ing in the Mal­dives. (Pho­to / cap­tion: www1​.rfi​.fr)

This small group of lawyers and gov­ern­ment offi­cials in Mal­dives devel­oped a frame­work that would cod­i­fy a right to cli­mate” for the peo­ple of those islands and the islands them­selves, with­in either nation­al leg­is­la­tion or new con­sti­tu­tion­al amendments.

Indeed, the right to cli­mate” is not a new right, but an ancient one. It is the right to have con­di­tions con­ducive to life, and the right to self-deter­mi­na­tion and sur­vival. A fed­er­al judge in the Unit­ed States recent­ly rec­og­nized that such a right is cen­tral to bedrock guar­an­tees of life and liberty.

Account­abil­i­ty: juris­dic­tion and com­pen­sato­ry damages

Pre­cise­ly because indus­tri­al­ized and indus­tri­al­iz­ing nations around the world have vio­lat­ed those rights by past and con­tin­ued emis­sions, the actors respon­si­ble for those emis­sions must be held direct­ly account­able. Nation-states and res­i­dents would enforce those rights. They would file law­suits with­in island nation courts against ener­gy cor­po­ra­tions and nation­al gov­ern­ments that have tak­en lit­tle action to ensure their emis­sions do not cause glob­al harm.

Deter­min­ing which actors are most respon­si­ble for the sink­ing of island nations wouldn’t require new math. Part of the Paris accord requires the com­pi­la­tion of data on emit­ters in all nation­al sig­na­to­ries. Much of that infor­ma­tion is already com­mon­ly avail­able. It is there­fore pos­si­ble, for instance, to say that Duke Ener­gy — a util­i­ty cor­po­ra­tion oper­at­ing in the Unit­ed States — is par­tial­ly respon­si­ble, to a cer­tain per­cent­age, for the fate of the peo­ple of Kiribati.

Because the harm from those emis­sions is inflict­ed direct­ly on the peo­ple and ecosys­tems of island nations, domes­tic courts with­in those nations would have juris­dic­tion over those law­suits. Law­suits would seek both com­pen­sato­ry dam­ages — for past, cur­rent, and future harm — as well as injunc­tive relief order­ing cor­po­ra­tions and gov­ern­ments to cease harm­ing the peo­ple and ecosys­tems of those island nations.

Cor­po­ra­tions and gov­ern­ments most like­ly lack any assets with­in the island nations that could be tak­en to sat­is­fy an award. There­fore, suc­cess­ful plain­tiffs would present both those awards and court orders to the courts of oth­er nations for enforce­ment. Iron­i­cal­ly, it is cor­po­ra­tions them­selves that have pio­neered the very multi­na­tion­al sys­tem of debt lia­bil­i­ty that would make such enforce­ment possible.

At the very least, those judg­ments would begin to estab­lish a clear and legal cause-and-effect that has been large­ly absent from the world stage. Even if those judg­ments were blocked from col­lec­tion for one rea­son or anoth­er, they would begin to force action in ways that the genial, place-at-the-table glob­al cli­mate accords have been unable or unwill­ing to force.

Reg­u­lat­ing harm, legal­izes harm

The sheer immen­si­ty of the impacts of glob­al warm­ing forces us to rec­og­nize that humans on this plan­et do, indeed, have the pow­er to bring the earth’s com­plex web of life crash­ing to the ground. Not only is this bad for all oth­er liv­ing beings on the plan­et, but our col­lec­tive actions also place the very sur­vival of the human race in the balance.

Up until now, the law and gov­ern­ments of indus­tri­al­ized nations have attempt­ed to pro­vide pro­tec­tion for the plan­et through a sys­tem of envi­ron­men­tal reg­u­la­tions, which have come up short. Those reg­u­la­tions are often draft­ed by the very cor­po­ra­tions osten­si­bly reg­u­lat­ed by them. They most often serve to legal­ize indus­tri­al prac­tices, such as frack­ing for oil and gas. These prac­tices cause severe harm to the envi­ron­ment (includ­ing glob­al warm­ing pollution).

The dan­gers of frack­ing. (Info­graph­ic: celdf​.org)

While indige­nous nations have long seen nature as some­thing oth­er than a thing” that can be bought and sold, West­ern sys­tems of law con­tin­ue to clas­si­fy nature and ecosys­tems as mere­ly prop­er­ty. Because of that, the more nature that can be owned, the more can be legal­ly destroyed by the owner.

The com­mu­ni­ty rights movement

That’s start­ing to change in the Unit­ed States. Over the past fif­teen years, three dozen munic­i­pal gov­ern­ments across the coun­try have adopt­ed local laws rec­og­niz­ing that nat­ur­al com­mu­ni­ties and ecosys­tems have a right to exist and flour­ish. Part of a move­ment toward com­mu­ni­ty rights,” these com­mu­ni­ties have deter­mined that the sur­vival of ecosys­tems in their munic­i­pal­i­ties is so inter­twined with their own well-being, that nature must be pro­tect­ed by the high­est pro­tec­tions avail­able with­in the law.

In 2008, the peo­ple of Ecuador blazed an inter­na­tion­al path toward the rights of nature” by includ­ing recog­ni­tion of ecosys­tem rights with­in their nation­al con­sti­tu­tion. Since then, res­i­dents have brought enforce­ment cas­es under those pro­vi­sions. They have suc­ceed­ed in judi­cial recog­ni­tion of the con­sti­tu­tion­al rights of rivers and oth­er nat­ur­al com­mu­ni­ties in Ecuador.

While sci­en­tists and cli­mate nego­tia­tors most­ly speak in terms of human impacts, we must begin to see the plan­et and its atmos­phere as an ecosys­tem unto itself, wor­thy of being accord­ed the high­est rights-pro­tec­tions. Thus, not only are some com­mu­ni­ties work­ing to adopt a human right to cli­mate” as part of their laws, but many are also work­ing to adopt a right of the cli­mate” — the right of the planet’s ecosys­tem to be healthy and unaf­fect­ed by human-caused glob­al warm­ing emis­sions. This is a recog­ni­tion that the cli­mate itself, as an inte­gral func­tion of plan­et earth, must be rec­og­nized as hav­ing rights of its own; rights that we are duty-bound to pro­tect and enforce.

If we fail to use this piv­otal moment to tran­scend our 18th cen­tu­ry gov­ern­ing sys­tems, which gen­er­al­ly ignore nature and ecosys­tems, then over the next sev­er­al decades small islands nations will see their very coun­tries under­wa­ter. If we do not evolve toward a sys­tem of law and gov­er­nance that incor­po­rates an indige­nous under­stand­ing of nature, then over the next sev­er­al decades we could suf­fer a thou­sand more cli­mate con­fer­ences and it won’t make a bit of difference.

There is a dif­fer­ent path, one that com­mu­ni­ties in the Unit­ed States and activists in oth­er nations are pio­neer­ing. They’re mov­ing for­ward with the under­stand­ing that the change that is need­ed won’t imme­di­ate­ly be embraced at the inter­na­tion­al lev­el. Rather, it will require first mak­ing change at home, where it is pos­si­ble to do so now, in our own communities.

Earth” by Kevin Gill. (Pho­to: Flickr / Cre­ative Commons)

(Com­mu­ni­ty Rights Paper #15 — Stop­ping Cli­mate Change: The Slow Train to Nowhere” was orig­i­nal­ly pub­lished on the Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund (CELDF) web­site and is repost­ed on Rur­al Amer­i­ca In These Times with per­mis­sion from the author. For fur­ther read­ing on the com­mu­ni­ty rights move­ment, check out a copy of We the Peo­ple: Sto­ries from the Com­mu­ni­ty Rights Move­ment in the Unit­ed States by Thomas Linzey and Anneke Campbell.) 

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Thomas Linzey, a con­tribut­ing writer to Rur­al Amer­i­ca In These Times, is the exec­u­tive direc­tor and co-founder of the Com­mu­ni­ty Envi­ron­men­tal Legal Defense Fund (CELDF) and serves as the organization’s chief legal counsel.
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