Groundbreaking Court Case Argues U.S. Climate Denial Policy Violates Americans’ Right to Be Free
By Carter Dillard
In 2019 a study linked climate change and hotter weather to early childbirth in the United States. "That's enough to take somebody from what's considered to be a pretty healthy pregnancy into a 'we are somewhat worried' pregnancy," said Alan Barreca, a UCLA professor of environment and human health and lead author of the study.
Prior to this, several studies showed that the most effective way to mitigate the climate crisis, in terms of individual behavior, was to choose a smaller family, and have fewer children than one normally would.
That means the best thing we can do to protect our kids is to change the way we plan families. If you think about that statement, it makes sense: Planning ahead is much more effective than simply reacting to a situation. But as the climate crisis kills off nature and superheats the planet at an accelerating rate, pregnancies give us a beautiful window to see the interconnection in one stark way — at the nexus between the human world and the nonhuman world and the environment we are overrunning — and to consider the best solution to the problem.
There's something hidden in this question that could be preventing the world from taking the effective action necessary to deal with the climate crisis, and related crises like the COVID-19 pandemic. What do we mean by the environment? What are we protecting from the climate crisis, and wish to have in the future? This is called the normative baseline problem, and it halts progress on policy and action as we struggle at the crossroads of different ways to go, between more anthropogenic and less anthropogenic choices.
The baseline problem tends to linger when we consider things in terms of human welfare. If we switch to a framework of human freedom, our preference should become clear. Should infants be free of the ravages of an anthropogenic climate? How can we be free from others without restoring nature, or adhering to the highest environmental baseline possible? Freedom from the power of others is contingent upon restoring nature and the wild — or a baseline based on the absence of human power — and pursuing the highest form of environmental protection. Freedom from others logically starts with the nonhuman world or the rewilding of our planet.
The Baseline Problem
There is a cognitive dissonance prevalent in our species of evaluating something without thinking through the normative baselines, or the things against which we are making the evaluation. For example, I might think that — relative to how I will feel in a minute's time — it is a good idea to gorge on doughnuts right now. If I had really considered how I would feel later, and especially in the long run, and if I keep making the same decision, I would realize that I should have thought beyond the short term, or made the decision at a later point of time.
The world made the baseline mistake in developing environmental policy decades ago, choosing to treat nature as a resource for humans. The baseline was too low and allowed policies that fell short; indeed, it is one of the reasons our planet continues to superheat. We are making that same mistake now with regard to COVID-19, by financially stimulating factory farming and other forms of ecocide that degrade the buffer (or social distancing) between people that our pre-Anthropocene environment offered. Degrading that "natural buffer" exacerbates the risk of pandemics and determines how we can react to them. As the New Republic reported, the next pandemic could be hiding in the Arctic permafrost.
Solving the baseline problem will allow us to trace these calamities — like the unfolding death of the Great Barrier Reef — and help us back to an ultimate source, and, perhaps, to a solution. We can no longer use a baseline for environmental policy that treats nature or the nonhuman world as a human resource. This is the baseline most environmentalists use, and the one that created the Anthropocene era in which we find the world today. A much higher baseline would view nature as something that ought to be a nonhuman habitat or the homes of sentient species who have a right to survive and thrive. This would be a restorative baseline, and the one more consistent with animal liberation. Such a baseline would be most protective against things like climate change and the pandemics it drives. A policy based on this baseline would revolve around ensuring our children have the only environment proven — over millennia‚ that allows humans and all species to thrive. It would seek to eliminate the way the absence of nature in our lives is degrading our psyches.
In other words, what should our environment be like? What environment do our kids deserve? Do we want to raise kids with antisocial personalities who will plague their future generations with the same issues? Can we avoid doing so? Our choices to answer that question are being cut off as corporate and government forces convert nature into profits for the uber-wealthy. Our freedom to choose, our freedom through nature, is being taken away from us.
Whether we and our children have a right to that higher baseline and environment — what our future ought to look like — underlies the climate debates and the culture wars over how we respond to COVID-19. In this context, the debate centers around whether we should prioritize economic growth over preserving nature, and the protection of human life. The debate is between those who favor a lower environmental baseline and economic growth and those who favor a higher baseline and human rights, like the right of the most vulnerable groups to survive the pandemic.
It is a debate that is now being fought out in federal court. The case will determine a lot about what it means to be free in America — for us and for our kids.
Here is the key to that case, something many people miss. In order for us to be free, wilderness — or the relative absence of human domination over nature — has to remain and be protected as a potential baseline against the imposition of human power. Without it, we will lose our point of orientation to know what it means to be free from others. Or as Senator Frank Church of Idaho said in helping to pass the Wilderness Act of 1964, that "without wilderness this country will become a cage." Consider this, and the uber-wealthy class: People like Elon Musk insert themselves between us and nature in order to overrun it and promote increased population growth to accelerate that process. They envision a future in which the world is one big market, or a place they can dominate as the alternative — or the free world of Thoreau — recedes into extinction.
It's hard to think outside of the box when there is no outside, when there is no alternative to a man-made, human-dominated world. Anti-environmental groups who wish to convert the entire world into a market that is owned by a powerful few, who are now even eyeing the resources in space, know and exploit this fact. When I am in nature, in the wild, I can see the box or cage from the outside. I am free because I have that perspective, point of orientation, or baseline. Shouldn't we ensure that our kids have the same choice, and can see from that perspective?
The founders of this country thought so. They understood how crucial it was to have a baseline that could be used to judge and orient ourselves against human power, and wrote it into the Declaration of Independence, using the concept of wilderness and nature as the foundation upon which to build the latticework of the American social contract. They understood that human rights and democracy are objective values and should orient around an external and objective point like nature. In the Declaration, they explicitly assured it to our progeny.
No Freedom Without Nature
In the case, which is now on appeal to the Ninth Circuit Court of Appeals, the Animal Legal Defense Fund and Seeding Sovereignty, two nonprofits, allege that the federal government's policy of ignoring the climate crisis — and in many cases knowingly exacerbating it — violates Americans' right to be free because it is destroying our environment relative to the higher, or restorative baseline. The concept of constitutional freedom can be complex but one way to unpack it is by dividing it into positive and negative freedoms — or the right to be free from the nonconsensual impact other people have on you, and the freedom to choose how to live your life. The plaintiffs allege our government is violating both these freedoms.
Consider the impact of the climate crisis on pregnant women, as the baseline environment, which generations of American mothers have enjoyed, and is now being degraded. Not only are the mothers and their babies subject to the disastrous and long-term impacts of the crisis, but their choices and opportunities in life are being cut off by such long-term impacts. Instead of addressing this issue, the government's policies internationally have shifted the benefits to polluters, who use the wealth to minimize the harm of the crisis upon themselves and expand their own choices in life by ensuring poorer health, additional costs of care, etc. This case argues that because we have the right to be free from others and to live our lives as we choose, such government policies violate the Constitution, which protects us from these and similar intrusions. How can we have a right to be free from relatively nonintrusive things like government surveillance, as the Supreme Court has always held, but not be free from life-threatening ecological impacts? We do have such a right — a right to a natural and restorative environmental baseline, or the highest possible standard of environmental protection, which stands as a wall between us and those who would use nature for their own profits, and prevents from further endangering pregnant women and their children, and exacerbating pandemics in the future. Having that right is what it means to be free.
Taking a Revolutionary Perspective and Acting on It
The case of Juliana v. United States, which was filed in 2015 by 21 youth and organizational plaintiff Earth Guardians, is powerful and differs significantly from other constitutional litigations regarding the climate crisis as it is focused on anthropocentric standards for environmental protection, and relies on the role of nature, and wilderness, in particular, in the American Revolution and the founding of the country. Could the Founding Fathers have imagined that Americans would one day be so impacted by others, that nature would be so degraded, that our own environment threatened pregnancy? How would they have wanted us to react to that threat and our rights to be free from others, and free to live our lives as we see fit, relative to the environmental baseline they enjoyed and extolled as a necessary condition of freedom? This country is built on a promise to our progeny and we know the people who are making it impossible to keep that promise.
This is not about fealty to our Founding Fathers or some other form of nationalism masquerading as liberalism. If we don't orient our political systems around the absence of human power and the restoration of nature, we are adopting a concept of freedom that is incoherent. That, in turn, poses serious legitimacy problems for any form of governance, making consensual political association physically impossible. In other words, without the absence of human power — or nature or the nonhuman world — it becomes impossible to consent to human power. We cannot allow ourselves to simply embrace — and foist upon future generations — a world where we cannot be free from others' harmful influence, in which freedom from the power of others does not exist and political liberty is replaced by a degrading form of consumerist freedom. In such a world, freedom is more economic than political, and the average person's role is reduced to being a buyer and seller in a world market rather than that of an empowered citizen in free democracies surrounded by nature. Those promoting such an emaciated form of freedom, and blocking family planning reforms that would ensure people are empowered as truly free and equal might be thought of as pre-constitutional, but it is preventing the intergenerational constituting or coming together of people as truly self-determining.
The move away from a lower or resource-based baseline has begun, in part, with the recognition that humans and the environment are inextricably linked, which is a partial move away from the view of nature as a resource and separate from humanity. The next steps involve understanding exactly what we mean by the concept of nature and why we value it, and moving from the descriptive realm to the normative or evaluative realm — the realm of law and human rights — where we can articulate exactly how nature should be part of us and part of who we as a species should be. And when it comes to taking action, a useful perspective would be understanding that the fight for nature involves liberating the most vulnerable entities in the world — future generations and nonhumans. This involves universal reform of our family planning system. One effective option would be to liberate them by seizing the resources of those at the top of the power and population pyramid that Nobel laureate Steven Chu recognized and using those resources to fund universal family planning programs that promote smaller and more equitable families. And while we have been taught that countries like the United States were "constituted" by god-like wealthy white men in the past, new scholarship argues that this idea is nonsense and that if we assume political power derives from actual people, we are constantly either constituting legitimate democracies or deconstituting into illegitimate "pre-constitutional" political states, depending on the family planning systems at play.
Do you think the idea of linking equity and a universal ethic of smaller families to population and family planning sounds far-fetched? Others, like Michael Moore and David Brooks, are already making the connection in the mainstream.
The war on nature has turned into a war against us and our kids. We cannot afford to make the baseline mistake in the face of threats like the climate crisis, COVID-19, mass extinction and many other interrelated catastrophes. That is what the case is about: arguing that our fundamental human rights include a right and responsibility to nature, which in essence means seeing ourselves as guests of nature, and not its master. It is an argument that completely gels with changes around the country to limit destructive and mythical property rights, such as those over animals and over specific parts of our environment, in favor of a form of personhood that would protect the most vulnerable entities in the world.
And whether courts recognize that right to be free in nature or not, the tide of those willing to fight for the highest standard of environmental protection, and to protect those most vulnerable will continue to rise all the way up to the doorsteps of our oppressors — specifically those who push for a lower environmental baseline and economic growth over our right and responsibility to nature.
Carter Dillard is the founder of HavingKids.org. He served as an Honors Program Attorney at the United States Department of Justice and served with a national security law agency before developing a comprehensive account of reforming family planning for the Yale Human Rights and Development Law Journal. He has begun to implement the transition to child-centric "Fair Start" family planning, both as a member of the Steering Committee of the Population Ethics and Policy Research Project, and as a visiting scholar of the Uehiro Center, both at the University of Oxford.
This article was produced by Earth | Food | Life, a project of the Independent Media Institute.
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