Quantcast
Environmental News for a Healthier Planet and Life

Help Support EcoWatch

Climate Activists Use Civil Disobedience As Law Enforcement

Climate
Climate Activists Use Civil Disobedience As Law Enforcement

Waging Nonviolence

By Jeremy Brecher

Two years ago I was among more than a thousand people who committed civil disobedience at the White House to oppose the building of the Keystone XL pipeline. Since then many more have been arrested around the country, often blocking the actual pathway along which the Keystone XL is being constructed. Nearly 70,000 people have vowed to risk arrest if the State Department recommends that the president approve the pipeline.

All along I believed that these actions were justified, even though they meant breaking the law. After all, leading NASA climate change specialist Jim Hansen says that the Alberta tar sands, which the pipeline will carry, “must be left in the ground” because “if the tar sands are thrown into the mix it is essentially game over” for a viable planet.

Since being arrested at the White House, my perspective on the nature of such actions has changed. After learning about a fundamental principle of American law known as the public trust doctrine, I have come to believe that the U.S. government and other governments around the world are violating their own most fundamental responsibilities to their own people when they allow fossil fuel producers and users to devastate the earth’s atmosphere with greenhouse gases.

Governments will no doubt continue to treat protesters who block pipelines, coal mines and power plants as criminals. But such governments come into court with dirty hands, stained by their dereliction of the duty to protect the common inheritance of their own people.

Res Communes

The public trust doctrine has roots and analogues in ancient societies from Europe to East Asia to Africa, and from Islamic to Native American cultures. It was codified in the Institutes of Justinian, issued by the Roman Emperor in 535 A.D. The Justinian code defined the concept of res communes (common things): “By the law of nature these things are common to mankind—the air, running water, the sea and consequently the shores of the sea.”The right of fishing in the sea from the shore “belongs to all men.” The Justinian code distinguished such res communes from res publicae, things which belong to the state.

Based on the Justinian Code’s protection of res communes, governments have long served as trustees for rights held in common. In American law this role is defined by the public trust doctrine, under which the state serves as trustee on behalf of the present and future generations of its citizens. Even if the state holds title to a given resource, the public is the “beneficial owner.” As trustee, the state has a fiduciary duty to the owner—a legal duty to act solely in the owners’ interest. This principle is accepted today in both common law and civil law systems in countries ranging from South Africa to the Philippines and from the U.S. to India.

International law, furthermore, recognizes regions that lie outside of the political reach of any one nation state—specifically, the high seas, the atmosphere, Antarctica and outer space—as “global commons” governed by the principle that they are “the common heritage of humankind.” But there has been no effective vehicle for asserting our right not to have our common heritage destroyed.

Suing for an Inheritance

In a series of suits and petitions on behalf of young people in 2011, the Atmospheric Trust Litigation Project brought legal actions to all 50 U.S. states and the federal government demanding that they fulfill their public trust obligation to protect the atmosphere as a common property. Sixteen-year-old Alec Loorz, founder of Kids v. Global Warming and lead plaintiff in the federal lawsuit, said, “The government has a legal responsibility to protect the future for our children. So we are demanding that they recognize the atmosphere as a commons that needs to be preserved, and commit to a plan to reduce emissions to a safe level.”

The suits seek declarative judgment applying the public trust doctrine to the earth’s atmosphere. They ask courts to issue injunctions ordering federal and state governments to reduce carbon emissions to fulfill their duty to protect it. Similar suits are projected for countries around the world. While the courts have turned down some of these suits, in 2012 a federal district court ordered that a case brought in New Mexico go forward.

There is precedent supporting the public trust doctrine in the U.S. The U.S. Supreme Court decided, in a leading public trust case at the end of the nineteenth century, that the state’s power resulted from “common ownership” of the public trust asset. That power, the decision stated, should be exercised as “a trust for the benefit of the people,” not as a “prerogative for the advantage of the government, as distinct from the people.” The ownership is “that of the people in their united sovereignty.”

The trustee has an active duty of vigilance to prevent decay or “waste”—permanent damage to the asset. If the asset is wasted in the interest of one generation of beneficiaries over future generations, it is in effect an act of generational theft.

When a trust asset crosses the boundaries of sovereign governments, all sovereigns with jurisdiction over the natural territory of the asset have legitimate property claims to the resource. Thus, all nations on Earth are “co-tenant trustees” of the global atmosphere. As co-tenants they have an undivided right to possess the property. But they also have a duty not to allow the waste of the common property.

As compelling as the logic of such an argument may be, it is easy to imagine that many American courts will refuse to force governments to meet their obligations. In a brief to dismiss the Kansas suit, lawyers called the claim “a child’s wish for a better world,” which is not something a court can do much about. “No order issued by the District Court of Shawnee County can hold back global warming, any more than King Canute could order the tide to recede.”

The sad fact is that virtually all the governments on earth—and their legal systems—are deeply corrupted by the very forces that profit from destroying the global commons. These governments exercise illegitimate power without regard to their obligations to those they claim to represent, let alone to the future generations to whom they are mere trustees.

Civil Disobedience, Reconsidered

Protecting the global commons is not just a matter for governments. The failure of governments to protect the global commons is currently driving the climate protection movement to turn to mass civil disobedience, as witnessed by the campaigns against the Keystone XL pipeline, mountaintop-removal coal mining and coal-fired power plants. Looked at from the perspective of the global commons, however, these actions are far from disobedient.

Indeed, they embody the effort of people around the world to assert their right and responsibility to protect the global commons. They show people acting in an emergency situation on an evident necessity. They represent people stepping in to provide law enforcement where corrupt and illegitimate governments have failed to meet their responsibility to do so.

Legal rationales have played a critical role in many nonviolent movements. They strengthen participants by lending a sense of clarity that they are not promoting personal opinions by criminal means but rather performing a public duty. And they strengthen a movement’s appeal to the broader society by presenting action not as wanton lawbreaking but as an effort to rectify governments and institutions that are themselves in violation of the law.

For the civil rights movement, the Constitution’s guarantee of equal rights meant that sit-inners and freedom riders were not criminals but rather upholders of Constitutional law. For war resisters during U.S. wars from Vietnam to Iraq, the international law that since the Nuremberg trials has forbidden war crimes has defined civil disobedience as an obligation under international law. For those who took part in the nonviolent revolution that overthrew communism in Poland, their struggle was not criminal sedition, but an effort to implement the international human and labor rights laws ratified by their own government.

The legal obligation of governments to protect the public trust can play a role similar to governments’ obligation to protect human rights and eschew war crimes. Those who perpetrate climate change, and those who allow them to do so, should not be able to claim that the law is on their side. Those who blockade coal-fired power plants or sit down at the White House to protest the Keystone XL pipeline can—and should—insist that they are simply exercising their right and responsibility to protect the atmospheric commons they own along with all of present and future humankind.

Future climate protesters can proudly proclaim that they are actually climate protectors, upholding the law, not violating it. Nobody should expect American judges to start acquitting protesters on public trust grounds any time soon. But juries that try climate protesters should keep in mind that they have the right and the responsibility to acquit those they believe have violated no just law.

Visit EcoWatch’s CLIMATE CHANGE pages for more related news on this topic.

——–

EcoWatch Daily Newsletter

Once the virus escapes into the air inside a building, you have two options: bring in fresh air from outside or remove the virus from the air inside the building. Halfpoint Images / Getty Images

By Shelly Miller

The vast majority of SARS-CoV-2 transmission occurs indoors, most of it from the inhalation of airborne particles that contain the coronavirus. The best way to prevent the virus from spreading in a home or business would be to simply keep infected people away. But this is hard to do when an estimated 40% of cases are asymptomatic and asymptomatic people can still spread the coronavirus to others.

Read More Show Less
California Senator Kamala Harris endorses Democratic presidential candidate Joe Biden at a campaign rally at Renaissance High School in Detroit, Michigan on March 9, 2020. JEFF KOWALSKY / AFP via Getty Images

Former Vice President Joe Biden made a historic announcement Tuesday when he named California Senator Kamala Harris as his running mate in the 2020 presidential election.

Read More Show Less
An aerial view taken on August 8, 2020 shows a large patch of leaked oil from the MV Wakashio off the coast of Mauritius. STRINGER / AFP / Getty Images

The tiny island nation of Mauritius, known for its turquoise waters, vibrant corals and diverse ecosystem, is in the midst of an environmental catastrophe after a Japanese cargo ship struck a reef off the country's coast two weeks ago. That ship, which is still intact, has since leaked more than 1,000 metric tons of oil into the Indian Ocean. Now, a greater threat looms, as a growing crack in the ship's hull might cause the ship to split in two and release the rest of the ship's oil into the water, NPR reported.

On Friday, Prime Minister Pravind Jugnauth declared a state of environmental emergency.

France has sent a military aircraft carrying pollution control equipment from the nearby island of Reunion to help mitigate the disaster. Additionally, Japan has sent a six-member team to assist as well, the BBC reported.

The teams are working to pump out the remaining oil from the ship, which was believed to be carrying 4,000 metric tons of fuel.

"We are expecting the worst," Mauritian Wildlife Foundation manager Jean Hugues Gardenne said on Monday, The Weather Channel reported. "The ship is showing really big, big cracks. We believe it will break into two at any time, at the maximum within two days. So much oil remains in the ship, so the disaster could become much worse. It's important to remove as much oil as possible. Helicopters are taking out the fuel little by little, ton by ton."

Sunil Dowarkasing, a former strategist for Greenpeace International and former member of parliament in Mauritius, told CNN that the ship contains three oil tanks. The one that ruptured has stopped leaking oil, giving disaster crews time to use a tanker and salvage teams to remove oil from the other two tanks before the ship splits.

By the end of Tuesday, the crew had removed over 1,000 metric tons of oil from the ship, NPR reported, leaving about 1,800 metric tons of oil and diesel, according to the company that owns the ship. So far the frantic efforts are paying off. Earlier today, a local police chief told BBC that there were still 700 metric tons aboard the ship.

The oil spill has already killed marine animals and turned the turquoise water black. It's also threatening the long-term viability of the country's coral reefs, lagoons and shoreline, NBC News reported.

"We are starting to see dead fish. We are starting to see animals like crabs covered in oil, we are starting to see seabirds covered in oil, including some which could not be rescued," said Vikash Tatayah, conservation director at Mauritius Wildlife Foundation, according to The Weather Channel.

While the Mauritian authorities have asked residents to leave the clean-up to officials, locals have organized to help.

"People have realized that they need to take things into their hands. We are here to protect our fauna and flora," environmental activist Ashok Subron said in an AFP story.

Reuters reported that sugar cane leaves, plastic bottles and human hair donated by locals are being sewn into makeshift booms.

Human hair absorbs oil, but not water, so scientists have long suggested it as a material to contain oil spills, Gizmodo reported. Mauritians are currently collecting as much human hair as possible to contribute to the booms, which consist of tubes and nets that float on the water to trap the oil.

A northern mockingbird on June 24, 2016. Renee Grayson / CC BY 2.0

Environmentalists and ornithologists found a friend in a federal court on Tuesday when a judge struck down a Trump administration attempt to allow polluters to kill birds without repercussions through rewriting the Migratory Treaty Bird Act (MBTA).

Read More Show Less
A spiny dogfish shark swims in the Olympic Coast National Marine Sanctuary off the coast of Washington. NOAA / Wikimedia Commons

By Elizabeth Claire Alberts

There are trillions of microplastics in the ocean — they bob on the surface, float through the water column, and accumulate in clusters on the seafloor. With plastic being so ubiquitous, it's inevitable that marine organisms, such as sharks, will ingest them.

Read More Show Less
A "vessel of opportunity" skims oil spilled after the Deepwater Horizon well blowout in the Gulf of Mexico in April 2010. NOAA / Flickr / CC by 2.0

By Loveday Wright and Stuart Braun

After a Japanese-owned oil tanker struck a reef off Mauritius on July 25, a prolonged period of inaction is threatening to become an ecological disaster.

Read More Show Less

Trending

The Mountain Valley Pipeline proposes to carry natural gas for hundreds of miles over dozens of water sources, through protected areas and crossing the Appalachian Trail. Appalachian Trail Conservancy / YouTube

It's been a bad summer for fracked natural gas pipelines in North Carolina.

Read More Show Less