Published on November 23rd, 2017 | by Steve Hanley0
Will US Courts Force America To Confront Climate Change?
November 23rd, 2017 by Steve Hanley
Courts are poorly equipped to deal with public policy considerations like climate change. But at a time when the executive and legislative branches of American government are bought and paid for by fossil fuel interests, they may be the last, best option for climate activists. That’s the opinion of climate scientist James Hansen, who has been sounding the alarm about climate change for more than 30 years.
Hansen As Modern Day Cassandra
Hansen has a reputation for being a Cassandra — the figure from Greek mythology who suffered the curse of always having to tell the truth. His refusal to moderate his warnings has made him few friends, even among environmentalists. This past week, Hansen was denied an opportunity to address world leaders at the COP23 climate summit in Bonn, Germany.
Outside the conference, Hansen told The Guardian, “The judiciary is the branch of government in the US and other countries that is relatively free of bribery. And bribery is exactly what is going on.” He is one of the organizers of the suit filed in federal court in Oregon by Our Children’s Trust. It claims the US Constitution puts the onus on the government to protect its citizens from harm. After all, what good are “life, liberty, and the pursuit of happiness” if our kids don’t live long enough to enjoy them?
Hansen has no kind words for the protocols agreed to in Paris in December 2015, calling them too little, too late. He even dismisses California’s cap and trade policies. “Half-arsed, half-baked plans only delay a solution,” he grumbles. (Editor’s note: This strong-willed approach to the problem also hints at one of the personality traits that must have carried him to the head of NASA GISS.)
The only thing to do is to sue the fossil fuel companies and force them to pay for the damage they have done and are continuing to do. That’s only fair, says Hansen, because the products they sell account for 70% of all global emissions.
He even thinks Trump’s decision to pull the US out of the Paris climate accords — weak as they are — may work to his advantage when the lawsuit in Oregon comes to trial in February. He thinks such an arbitrary and capricious policy will make it harder for any court to find the government is acting in the public interest. “Trump’s policy may backfire on him,” he says. “In the greater scheme of things, it might just make it easier to win our lawsuit.”
Smoke & Fumes Meets Vulture’s Picnic
Hansen has an ally in the Center for International Environmental Law, which has just published a new report entitled Smoke and Fumes: The Legal and Evidentiary Basis for Holding Big Oil Accountable for the Climate Crisis. CIEL (which just happens to be the French word for “sky”) says the report pinpoints exactly what the fossil fuel companies knew and when they knew it. It also shows what the industry did with that knowledge and how it adopted the tactics of the tobacco companies to hide the truth in order to avoid or at least delay accountability for its actions.
“The report presents this evidence in the context of the core elements of legal responsibility in tort and human rights law,” a CIEL press release says. “It concludes that oil industry actors had early knowledge of climate risks and important opportunities to act on those risks, but repeatedly failed to do so. Those failures give raise to potential legal responsibilities under an array of legal theories.” No doubt, the attorneys representing Our Children’s Trust got an advance copy of the study.
Anyone who wants the inside skinny on what dirty deeds (RIP, Malcolm Young) the fossil fuel industry has done to keep money flowing into its corporate coffers — from fomenting international coups to using the compartment between the the double hulls of supertankers to carry more crude — should read Greg Palast’s Vulture’s Picnic: In Pursuit Of Petroleum Pigs. It may not be great literature but it pulls no punches, as it offers the reader a gut-wrenching tour of the dark underbelly of the fossil fuel leviathan. It’s even available in PDF format for those who don’t want to go to the library to obtain a copy. You might want to keep a vomit bucket handy while reading it, though. It’s strong stuff.
Will Courts Protect Us From Climate Change Inaction?
The American legal system is incomprehensible to most outside observers. Frankly, it is incomprehensible to most Americans, too. In theory, it is supposed to provide a place where the powerless can obtain justice even against powerful opponents. In reality, access to the courts is a practical impossibility for the vast majority of Americans, those who can’t afford to pay $10,000 retainers to $500 an hour lawyers or take days out of work to sit through hours of depositions and days of trials.
The dark and torturous path of civil litigation in America makes it fertile ground for those who would use it for nefarious purposes. Over the past 30 years, highly paid corporate attorneys with no sense of morals or ethics have created a new form of litigation known as the SLAPP suit. According to Wikipedia, “A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.”
In other words, a SLAPP suit is a form of legal terrorism that the courts willingly allow. In August, attorneys representing Energy Transfer Partners, the company building the Dakota Access pipeline, filed a $300 million dollar racketeering suit against Greenpeace, Earth First, and the fossil fuel divestment advocacy group BankTrack. The suit was brought by the law firm founded by Marc Kasowitz, who just happens to be Donald Trump’s personal lawyer. The language of the suit is inflammatory in the extreme.
It alleges the NoDAPL movement — which pitted the Standing Rock Native Americans against a weaponized civil SWAT team subsidized by ETP — was driven by “a network of putative not-for-profits and rogue eco-terrorist groups who employ patterns of criminal activity and campaigns of misinformation to target legitimate companies and industries with fabricated environmental claims.”
As reported by The Intercept, the suit goes on to say, “It was as if the entire campaign came in a box. And of course it did. Its objective was not to protect the environment or Native Americans but to produce as sensational and public a dispute as possible, and to use that publicity and emotion to drive fundraising.” The suit accuses the defendants of “perpetrating acts of terrorism under the U.S. Patriot Act, including destruction of an energy facility, destruction of hazardous liquid pipeline facility, arson and bombing of government property risking or causing injury or death.”
“We felt compelled to file the lawsuit against Greenpeace and others because we want the truth to come out about the illegal actions that took place in North Dakota and the funding of these actions,” ETP spokesperson Vicki Granado told The Intercept. “In many cases, the only way the truth comes out is through the legal process.”
The Intercept provides additional details about the process leading up to the lawsuit. It claims ETP hired private security firm TigerSwan to “connect the dots” to expose the people funding the NoDAPL movement. A large chart purporting to show the various linkages of the opposition hung on the wall at Tiger Swan’s office in North Carolina. A photo of that chart has been leaked by former employees. It shows Warren Buffett, the chairman of Berkshire Hathaway, as one of the primary connections in the resistance cabal. That seems a bit odd, since Berkshire Hathaway has many investments in the oil and gas sector, including ETP.
“It grossly distorts the law and facts at Standing Rock,” says Greenpeace general counsel Tom Wetterer. “We’ll win the lawsuit, but it’s not really what this is about for ETP. What they’re really trying to do is silence future protests and advocacy work against the company and other corporations.”
Linda Black Elk, a member of the Catawba Nation who lives on the Standing Rock reservation and organized resistance to the pipeline months before the protests began, agrees with Wetterer. “[The lawsuit] had some major racist overtones. They were basically saying that we were not intelligent enough to know for ourselves what the possibilities were in case the pipeline were to leak. They were basically saying we were manipulated. I think the whole purpose of it is to scare tribes from further activism when it comes to the fossil fuel industries and to scare these green groups to keep them from supporting us in those future fights.” The fears of the Native Americans about how dangerous the pipeline could be were confirmed last week when the Keystone pipeline, owned by TransCanada ruptured, allowing more than 200,000 gallons of crude oil to escape into the environment.
The SLAPP suit by ETP reminds many of the apocryphal story about a young man who murders his parents and then throws himself on the mercy of the court because he is an orphan. The fossil fuel industry, following the lead of the Koch Brothers, has invested billions to create and prop up a veritable cornucopia of think tanks, lobbying firms, and issue advocacy organizations designed to bamboozzle the public and sway politicians to support legislation and policies that promote their narrow interests. If there is any conspiracy afoot, it is being orchestrated by the fossil fuel industry itself.
The Reactionaries’ Court Packing Plan
Turning to the courts may be the only recourse climate advocates have left, but that door is closing quickly. The Republicans are pushing hard to get diehard extremists appointed to the federal courts, according to a report by Think Progress. Not content with owning the entire US Congress and the executive branch,
conservatives reactionaries have formulated a plan to pack the federal court with nominees submitted by the Federalist Society, the group responsible for putting John Roberts, Samuel Alito, and Neil Gorsuch on the US Supreme Court. The plan boldly states its objective is “undoing the judicial legacy of President Barack Obama.”
Gorsuch gave a talk to the Federalist Society last week in which he defended what he sees as the duty of judges to enforce laws as written, not struggle to guess what legislators really meant or substitute their judgment for that of the people who wrote the law. That is a central theme of the Federalist Society, which sees its mission as beating back the “revisionist” policies of the Supreme Court under Earl Warren. Chief Justice Warren believed that the courts have a duty to promote a fair and equitable society.
The reactionaries — who are in the majority of the Supreme Court today thanks to the perfidy of the hateful and hate-filled Mitch McConnell — believe the Constitution means what it said on September 17, 1787, and nothing more. If people don’t like it, they can amend it. Otherwise, compassion and notions of fair play are mere distractions that must be rigorously expunged from all judicial proceedings. That is the hallmark of the Roberts court and will be its legacy.
Keep that thought in mind. Several states are seeking to pass new laws criminalizing acts of protest. Some of those laws give motorists immunity from criminal prosecution or civil liability if they drive their vehicles into protesters standing on public roads. That’s exactly what happened to Heather Heyer during the riots in Charlottesville, Virginia, earlier this year. Those laws will invariably wind up before the Supreme Court and Gorsuch can be depended upon to enforce them. That such laws may promote tyranny is no concern of his. People simply shouldn’t vote for legislators who write stupid laws.
James Hansen is right. With all the members of the legislative and executive branches deaf to the calls for climate action, the courts are the only avenue left for climate activists to pursue. But the judiciary is rapidly being taken over by the same reactionary forces who have already subverted the executive and legislative branches. Soon, there will be no one in the federal government willing to defend the earth from those who would destroy it for their own personal gain.
The “right of the people peaceably to assemble, and to petition the Government for a redress of grievances” as guaranteed by the First Amendment is slowly but surely being written out of the Constitution with the full cooperation of the courts. Two years ago, a federal court in Washington, DC, ruled that protesters outside the Supreme Court could not leave the sidewalk in front of the building. Free speech has its limits and, apparently, trying to influence the very people who decide what free speech is exceeds those limits.
That trend will only accelerate as the lunatics and crazies Trump is nominating to the federal courts — all of them recommended by the Federalist Society — begin to exert their influence. Soon, the fate of the United States and perhaps the world will depend largely on unelected judges who have been groomed almost since birth to defend profits over people.
In case you think this point is being overblown, Reuters reports that just last week Donald Trump announced an updated list of 5 strongly conservative judges he will consider if another vacancy on the Supreme Court occurs while he is in office. Since three of the current members of the court are age 79 or older, the odds are good he will get that chance. Trump has said he is “very committed” to appointing judges who are “committed originalists and textualists.” In other words, those who think America in 1787 was just about perfect and should remain as it was then forever.
Echoes Of The New Deal Still Reverberate
It is not inaccurate to say this battle began more than 80 years ago with FDR and the New Deal. The wealthy have been waiting a long time to get their revenge. Now it seems their quest is about to meet with success. They may win the battle, but by doing so, they will return America to being the insular irrelevancy it was in 1930.
The goal of the “originalists” in the judicial system is not to make America great again, but to make it the way it was in the beginning when African Americans were counted as 3/5 of a person, women were subservient to men, and white males ruled with impunity. That’s how America was originally and seems to be what John Roberts and company are aiming to make it again while taking a wrecking ball to the idea of personal liberty. He and his henchmen are bound and determined to destroy America in order to save it.
And what of the earth? The Constitution makes no mention of it; therefore, the courts need not concern themselves with its welfare, according to conservative dogma. If James Hansen is expecting the judiciary to come to the rescue of the environmental movement, he most likely will be bitterly disappointed.
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