Why Climate Destruction Is Illegal

Discussion

Jeremy Brecher:

"Why climate destruction is illegal

The Justinian Code, issued by the Roman Emperor in 535 A.D., 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.”

Based on the Justinian Code’s protection of res communes, governments around the world have long served as trustees for rights held in common by the people. In U.S. law this role is defined by the public trust doctrine, under which the government serves as public trustee on behalf of present and future generations. Even if the state holds title, 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 with “the highest duty of care.” The principle is recognized today in both common law and civil law systems in countries ranging from South Africa to the Philippines and from the United States to India.

On Mother’s Day, 2011, the youth organization Kids vs. Global Warming organized the “iMatter March” of young people in 160 communities in 45 countries, including the United States, Russia, Brazil, New Zealand, and Great Britain. Concurrently, the Atmospheric Trust Litigation Project brought suits and petitions on behalf of young people in all 50 U.S. states to require the federal and state governments to fulfill their obligation to protect the atmosphere as a common property. Speaking to one of the rallies, 16-year-old Alec Loorz, founder of Kids v. Global Warming and lead plaintiff in the Federal lawsuit, said:

Today, I and other fellow young people are suing the government, for handing over our future to unjust fossil fuel industries, and ignoring the right of our children to inherit the planet that has sustained all of civilization. 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.

Loorz concluded: “The plaintiffs and petitioners on all the cases are young people. We are standing up for our future.”

A trustee has “an active duty of vigilance to ‘prevent decay or waste’ to the asset,” according to University of Oregon law professor Mary Christina Wood, whose new book Nature’s Trust: Environmental Law for a New Age lays out the legal basis for the suits. “Waste” means “permanently damage.” 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.”

Although so far the courts have turned down most of these atmospheric public trust suits, the decisions are being appealed. On October 3, 2013, the Supreme Court of Alaska became the first state supreme court to hear such an appeal.

A global climate insurgency

Compelling as the logic of the atmospheric public trust argument may be, it is easy to imagine that many U.S. courts will refuse to force governments to meet such 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.

The sad fact is that virtually all the governments on earth — and their legal systems — are deeply corrupted by the very forces that gain from destroying the global commons. They exercise illegitimate power without regard to their obligations to those they claim to represent, let alone to the common rights beneficiaries of other lands and future generations to whom they also owe “the highest duty of care.”

But protecting the atmosphere is not just a matter for governments. Indeed, it is the failure of governments to protect the public trust that is currently prompting the climate-protection movement to turn to mass civil disobedience. Looked at from the perspective of the public trust doctrine, these actions are far from lawless. Indeed, they embody the effort of people around the world to assert their right and responsibility to protect the public trust. They represent people stepping in to provide law enforcement where corrupt and illegitimate governments have failed to meet their responsibility to do so.

When the climate protection movement uses nonviolent direct action to protect the public trust, it is often confronted by government officials acting under color of law to perpetuate climate destruction. The Arctic 30 were held at gunpoint, for example, and charged with piracy. Russian Prime Minister Dmitry Medvedev said, “Concern for the environment must not cover up unlawful actions.” A law-enforcing climate insurgency will answer: Concern for oil company profits must not cover up unlawful government complicity in destroying the atmospheric public trust." (http://fpif.org/nonviolent-insurgency-climate-protection/)