Hope For The Courts

The Road to Resilience


I wanted to write something about my disappointment with the not entirely unexpected defeat of I 1631, the initiative proposing a fee on carbon, meant to begin weaning us off fossil fuels.  Given the widely discussed results of the report of the UN Intergovernmental Panel on Climate Change (IPCC), one would have hoped that more Washingtonians would have seen the urgency of the situation.

The IPCC report observed that global warming is occurring much more rapidly than previously expected.  Projections based on current trends indicate that the previous target limit of 2° C warming would subject the Earth to far more disastrous conditions than previously expected.  By lowering that target to 1.5° C, they projected that we could lower global water stress by 50%, and that hundreds of millions of people would be spared the effects of climate-induced poverty and displacement.   To make a long story short, that extra half degree of warming could make some effects of climate change 10 times worse.

In order to be on track to hold warming to 1.5° C, the recently released report said that we would have to lower our carbon footprint by 45% by 2030, and reach 100% by 2050.  The previous benchmark we were hoping to achieve was 50% reduction by 2050. The new benchmark is only 12 years away and we need to understand that not meeting that benchmark will lock us into global warming in excess of 1.5° C and all that implies.  On a hopeful note, the IPCC indicated that, although difficult, that goal is eminently achievable if we have the political will to do it.  Given our lethargic and complacent response to the earlier benchmark, it was hoped that the new report would shock us into taking action.  Thus my hope for Washington’s first-in-the-nation carbon tax (calling it a fee instead of a tax was, in my mind, political pablum, and I propose that we stick with the existing jargon and call it a carbon tax) was that we would step bravely into the future and pass it.  I’m hoping that it was the details of the proposal that our voters rejected and not the basic premise.  Let’s urge our state legislature to pass an acceptable proposal in next year’s state legislative session.  If we can’t do that in our state, who else will?

I’d like to take a step out into a broader inquiry.  What are our legal responsibilities to future generations – in particular, those citizens that aren’t born yet?  You may be aware of  Juliana vs. the United States, a suit brought by 21 people between the ages of 11 and 22.  Since they and their progeny are the ones that will have to live in the future, they are claiming that the failure of the government to protect the environment violates their constitutional rights to equal protection and due process.  The US government has repeatedly requested that the case be dismissed but a US District Court in Oregon, the Ninth Circuit Court in San Francisco and the US Supreme Court have all ruled that, for now, the case can move forward.

This case could set a very significant precedent.  We all know that the US Constitution insures basic rights to citizens, but it says nothing about future citizens.  This case has been compared to the famous Dred Scott decision of 1857 in which a freed and re-enslaved person sued for his freedom.  The US Supreme Court ruled against him with the argument that a slave and his descendants had no rights that a white man was bound to respect and, therefore, Mr. Scott had no standing to sue in federal court.

We know that the 13th Amendment, passed 10 years later, established rights for previously enslaved peoples, but what are the rights of yet unborn citizens?  (For that matter, what are the rights of other species or the Earth itself?)  Will we need to pass an amendment for that?  It should be clear that the US government, by pursuing policies that exploit finite resources and permanently (for all intents and purposes) despoil the environment, is looting future generations.

If the court rules in favor of the plaintiffs, they would be enshrining in US law something equivalent to the “Seventh Generation” principle first put forward by the Iroquois Confederacy.  That principle states that all decisions made would have to consider the impacts on the seventh generation in the future.  If this case makes it to the Supreme Court and the implications are thoroughly understood by both sides, the weight of the world will certainly be on the shoulders of those Justices.  To rule against would be perceived by many as an egregious existential injustice and to rule for would necessitate an overturning of the power structure in this country and in the world.  We know that a change of this magnitude will never happen in the Executive or Legislative Branches.  My hope is that the weight of the responsibility that these Supreme Court Justices are carrying will make at least a majority of them rise to the occasion.