Saturday, February 08, 2014

Climate Change and our future challenged in the courts


CCIllegalSome of our greatest environmental victories have occurred in the courts. The enactment of the 1963 Clean Air Act in the United States has allowed the Environmental Protection Agency (EPA) to sue carbon polluters. Sadly, that constitutes the EPA’s power in addressing Climate Change. There are many more court cases—including those that stopped lead going into our gasoline, stopped the destruction of endangered species, protected our water, and many other environmental victories. One gets taken to court and sued (maybe jailed) for dumping toxic chemicals into the public’s drinking water supply. We are a litigious society.

Environmental groups, now almost as thickly populated with lawyers as the corporations they battle, have become more than the watchdogs of our precious environment; they have become watchdogs with a considerable bite. (Read: Foes of Keystone XL Begin New Legal Battle Against State Department] Many companies understand the power of these groups to stovepipe environmental violations to the media and then to the courts, making polluters think twice about sloppy environmental practices that could ruin a year’s worth of profit. Increasingly, companies are becoming aware of their environmental responsibilities, so much so that they seek guidance of all sorts to make sure they do no harm. Someday we may even witness a universal standard like the ISO 14000 become the norm and require universal green certification for all business practices. The consequences of violating environmental laws can be so burdensome (ask BP about their legal struggles after the Deepwater Horizon oil spill) that most corporations will do quite a bit to avoid the legal consequences, including adopting the best environmental practices.

Let’s be clear: Corporations came to this environmental epiphany kicking and screaming though our legal system not because they suddenly appreciated that our environment is our life support system. (Check this quote from the business sector just this week: "But there needs to be a balance that allows manufacturers to thrive." as expressed in this article: “New smog limits could squeeze Chicago

However, the door swings both ways. Our laws, a system of rules and guidelines which are enforced at various levels of government, provide many a polluter a chance to win in the courts and gainsay our environment. That’s because our laws don’t necessarily tend towards the protection of our environment. Our laws, including some really bad ones (laws helped slavery endure for far too long), are neutral on our environment. If a community believes that it desperately needed a very polluting industry’s jobs, it’s quite likely that any environmental laws would be rendered toothless.

From this recent discussion, The Year Ahead in Environment and Energy, with top environmental reporters around the world chiming in, one sees continual battles in the courts on Climate Change ahead. For one point, although brought to its knees in the US, king coal isn’t remotely dead. Coal is abundant and the economic mainstay of many economies around the world. Coal for energy, the reporters say, will continue to thrive, regardless of the courts, regardless of the deadly affect burning this dirty fuel has on our planet. (For example, China, immune from our courts, imports 15% of its coal and that is more coal burnt for fuel than the rest of the world combined.)

Even what environmental laws we have may get complicated further if this new trade deal slips into existence and relinquishes our own sovereignty over our own laws:

Fast Tracking TPP Would Mean More Corporate Control of Our Democracy Do you care about having access to local and sustainably produced food or protecting your drinking water? Are you concerned about corporate influence distorting our elections? If you answered yes to either of these questions, you should be worried about legislation Senator Max Baucus and Rep. Dave Camp recently introduced that would grant the Obama administration fast-track authority. Those measures would allow the White House to quickly push the Trans Pacific Partnership (TPP) and another trade deal with Europe through Congress with a simple up or down vote. Fast-track authority would give the Obama administration the unchecked power to promote future trade deals. Those pacts would allow corporations to challenge any democratically enacted federal, state or local laws and regulations that would limit their narrow financial interests. The TPP and the U.S.-EU Free Trade Agreement are really corporate power grabs disguised as trade agreements containing provisions that would undermine basic consumer rights, including issues related to our food, water and local sovereignty. (February 3, 2014) EcoWatch

Rather than any great strides towards adapting to Climate Change -- major infrastructure changes or policies for mitigation that greatly reduce greenhouse gases (GHG’s) emissions -- our court dockets will be filled with pro-polluters fighting tooth and nail in our courts to keep doing what they do. Lawyers will get rich. The media will have showy legal battles to showcase. GHG concentrations in our atmosphere will rise.

This sparring in the courts, the back and forth haggling between perceived economic forces and advocates for a healthy environment, seems quite consistent with the natural competitiveness of our own nature and Nature’s nature for that matter. Except that this legal tension in our courts over our environment is not sustainable for us. If we continue in this way, fighting every bad chemical unleashed into our environment and every smoke stack spewing out greenhouse gases, we’ll cook ourselves, even in our air-conditioned courtrooms.

There isn’t enough time to fight every environmental assault in the courts as we have done in the past. However lucrative for lawyers and successful for environmentalists, past a certain point, say 4C or 6C rise in Climate Change, fighting individual cases of environmental abuse in our courts won’t matter. The laws of physics trump our legal system. No lawyer or judge or cleverly-written law can stop a force six hurricane from pummeling your coastline. The laws of physics say if we don’t get our global temperatures down to a sustainable level (what is believed by many experts to be 350parts per million of carbon dioxide) then you lose—and you don’t get to come back and appeal the decision.

We are going to have to find another way to shift to a sustainable existence rather than daily skirmishes in our courts. They are but distractions along the road to perdition, not where life will flourish.

It is interesting to me that our best and our brightest environmental reporters seem far more interested in the legality of environmental practices than their effect on their own survival system. Were this not so, and environmental reporters truly appreciated the predicament Climate Change puts us in, they might not be so inclined to focus solely on the judgments of our courts on environmental issues, and more disposed to heed the continual warnings of a way of life that is not sustainable.

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