A new wave of climate insurgents defines itself as law-enforcers
One in six Americans say they would personally engage in nonviolent civil disobedience against corporate or government activities that make global warming worse. That’s about 40 million adults. The fate of the earth may depend on them — and others around the world — doing so.
Such actions are about to take a quantum leap both in numbers and in global coordination. From May 4-15, 350.org, Greenpeace and many other organizations — notably grassroots movement organizations from every continent — will hold a global week of action called Break Free From Fossil Fuels. They envision tens of thousands of people mobilizing worldwide to demand a rapid transition to renewable energy. Events will include nonviolent direct actions targeting extraction sites or infrastructure; pressure on political targets to shift policies around fossil fuel development; and support for clean energy alternatives. Mass actions in Australia, Brazil, Canada, Germany, Indonesia, Israel/Palestine, Nigeria, the Philippines, South Africa, Spain, Turkey, and the United States will target fossil fuel projects and support ambitious solutions. Before and during the week of action, additional, locally-initiated actions are expected in many other locations around the globe.
In the United States there will be actions in California, the Northwest, the Mountain West, the Midwest, Washington, D.C., and the Northeast. They will include support for a moratorium on the auction of public land for fossil fuel development; mass trespass at fracking sites; land and flotilla blockades of refineries; actions at the facilities of pipeline companies; and blockades of trains carrying fracked oil. In each case the partners include not only national and international environmental organizations but dozens of community, indigenous, climate justice, labor, religious, citizen action and other groups that have long been campaigning locally against these targets.
Flipping the script
Break Free From Fossil Fuels participants will define themselves to the movement, the public and the courts not as criminals but as law-enforcers trying to enforce legal rights and halt governments and corporations from committing the greatest crime in human history.
Fundamental principles embodied in the laws and constitutions of countries around the world provide a strong basis for these claims. Basic human and constitutional rights include the unalienable rights to life, liberty and property — including the property that belongs not just to us but to future generations of humanity. And pursuant to the public trust doctrine governments are the trustees of the vital natural resources on which human well-being depends; they have a “fiduciary duty” to manage them for the benefit of all present and future generations. Governments have no right to authorize the destruction of those resources today to the detriment of future generations and constitutional rights to life, liberty and property. These legal rights will help provide the frame for the public messaging and legal strategy of climate-protecting civil disobedience surrounding Break Free From Fossil Fuels.
Use of constitutional law and the public trust doctrine for climate protection has been pioneered by young people, supported by Our Children’s Trust, who have brought lawsuits and/or rulemaking petitions in every U.S. state and against the federal government, as well as in several other countries around the world. Their aim is to require governments to act on their public trust duty to protect the climate, as well as the fundamental constitutional rights of present and future generations.
“The Federal government has been making decisions in the best interest of multinational corporations and their profits, but not in the best interest of my generation and those to come,” said Earth Guardians youth director Xiuhtezcatl Martinez, one of the lead youth plaintiffs in the landmark federal climate lawsuit now pending in the U.S. District Court for the District of Oregon. “Instead of changing their business model to meet the scientific reality of climate change, these companies are demanding we adapt to an uninhabitable world that supports their profits. When you compare the two, I think it’s clear that our right to clean air and a healthy atmosphere is more important than their ‘need’ to make money off destroying our future.”
In an astonishing turn of events last November, the American Fuel & Petrochemical Manufacturers, the American Petroleum Institute, and the National Association of Manufacturers — representing nearly the entire fossil fuel industry — filed a motion to “intervene” and join forces with the government against the youth in the Federal Constitutional and Public Trust lawsuit of Our Children’s Trust. They argued that, “If plaintiffs succeed in this court ordering the elimination or massive reduction of U.S. conventional fuel consumption and manufacturing processes that emit greenhouse gases beyond existing federal and other regulations, the members of each of the proposed intervener-defendants will be harmed.”
According to Our Children’s Trust executive director and lead attorney for the youth Julia Olson, “The fossil fuel industry would not want to be in court unless it understood the significance of our case. This litigation is a momentous threat to fossil fuel companies. They are determined to join the federal government to defeat the constitutional claims asserted by these youth plaintiffs. The fossil fuel industry and the federal government lining up against 21 young citizens — that shows you what is at stake here.”
On January 15, Magistrate Judge Thomas Coffin of the Federal District Court in Oregon accepted the fossil fuel and manufacturing industries’ move to intervene to oppose the lawsuit.
Claims that government actions are illegal and unconstitutional have played an important role in empowering social movements throughout history. 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 law-breaking, but as an effort to rectify actions of governments and institutions that are themselves in violation of the law.
For the civil rights movement, the U.S. Constitution’s guarantee of equal rights meant that those engaged in sit-ins and freedom rides were not criminals, but rather upholders of constitutional law — even if Southern sheriffs threw them in jail. For the activists of Solidarity, the nonviolent revolution that overthrew Communism in Poland was not criminal sedition, but an effort to implement the international human and labor rights laws ratified by their own government.
Constitutional and public trust arguments make it possible for the climate protection movement to turn the tables on the governments that purport to represent the world’s people and to have the authority to rule the world. They stand for the proposition that governments do not have the right to destroy the climate — and that the people have the right to stop them when they do so. Governments have no more right to authorize the emission of greenhouse gases that destroy the climate than the trust officers of a bank have to loot the monetary assets placed under their care. The people of the world have a right to our common natural resources. And we have a right, if necessary, to protect our common assets against those who would destroy them.
The constitutional duty of governments to protect the public trust, and the right of the people to life, liberty and property, can play much the same role in the climate movement that the U.S. Constitution’s right to equality played for the civil rights movement and the Polish government’s legal commitment to human and labor rights played for Solidarity. 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 fossil fuel pipelines can — and should — insist that they are simply exercising their fundamental constitutional rights to life, liberty and property, as well as their responsibility to protect the atmospheric commons they own along with all of present and future humankind. Climate protesters can proudly proclaim that they are actually protecting constitutional public trust rights for all, upholding the law, not violating it.
It has begun
When protesters block fuel trains or occupy government buildings, normally the police are called in, and the protesters are arrested and tried as law breakers. But a trickle of recent climate cases has begun to erode the expectation that the law supports the right of property owners to use their property to destroy the climate.
On Earth Day 2013, Alec Johnson (a.k.a. “Climate Hawk”) locked himself to a construction excavator in Tushka, Oklahoma, as part of the Great Plains Tar Sands Resistance campaign to stop the Keystone XL pipeline. Johnson explicitly based his defense on the public trust doctrine: “When it comes to our commons, to our public property, we the people have rights in a public trust.” The public trust doctrine, he continued, “assures us that we have rights when it comes to how our public commons are administered by any trustees placed in charge of it.” We the people are “armed” by such legal doctrine. We now “demand our environmental institutions and agencies recognize their responsibilities as trustees and exercise their fiduciary responsibility to act with ‘the highest duty of care,’ to ensure the sustained resource abundance necessary for society’s endurance.”
In a statement he prepared for the jury, Alec Johnson argued that his blockade of Keystone XL pipeline construction was necessary because the pipeline threatens our atmospheric public trust, and state and national governments are failing to protect us against that threat. He proclaimed on the basis of the public trust principle, “I wasn’t breaking the law that day — I was enforcing it.” Although Johnson could have been sentenced to up to two years in the Atoka County jail, he received no jail time and a fine of just over $1,000.
In 2013, Jay O’Hara and Ken Ward used a small fishing boat named Henry David T to block a ship from unloading 40,000 tons of coal at the Brayton Point, Massachusetts power plant. Prosecutors charged them with disturbing the peace, conspiracy, failure to act to avoid a collision, and negligent operation of a motor vehicle. O’Hara and Ward argued that the imminent threat of global climate change left them no choice but to act as they did. The day the trial was set to begin, the Bristol County District Attorney went out to the steps of the courthouse and announced that he was reducing the charge to a modest fine, which would help defray municipal costs. Then he issued a statement in support of O’Hara and Ward’s protest: “Climate change is one of the gravest crises our planet has ever faced. In my humble opinion the political leadership on this issue has been gravely lacking.” He thereupon met with the defendants and told them he would join them at the upcoming People’s Climate March.
On September 2, 2014, five activists blockaded a train used to ship Bakken oil in a BNSF Delta rail yard in Everett, Washington. They included a business climate consultant, a teacher’s assistant, a coffee house owner, a retired music teacher, and the owner of a small carpentry and painting business. In their court filings, the “Delta 5” argued that “to seriously address the climate crisis, we need to be shutting down our fossil fuel infrastructure and keeping that oil in the ground.” On that basis they maintained that their blockade was “morally — and legally — justifiable given the imperatives of the climate crisis.” The risks of global warming are an emergency, and require urgent, rapid reductions of atmospheric CO2 emissions if we are to maintain a sustainable climate. The blockaders asked that their actions be viewed, “not as a crime, but a as reasonable act of conscience, necessitated by the extreme nature of the emergency and by the fact that the government itself is in violation of the law.” Abby Brockway, a housepainter and Presbyterian elder, presented an additional defense based on the threat the oil trains presented to railroad workers and the communities they went through.
Initially the judge refused to admit a necessity defense. But shortly before the trial he reversed himself. As a result, for the first time in U.S. history a judge allowed a jury to hear testimony that climate protesters should not be found guilty of breaking the law because their actions were necessary to prevent a far greater harm – destruction of the Earth’s climate.
After testimony was completed, however, the judge instructed the jury not to consider the necessity defense, primarily on the grounds that they had not shown that all legal avenues had been exhausted. But the jury had already heard why the Delta 5 did what they did – and the expert testimony on the threat presented by climate change and oil trains. The jury acquitted them on the major charge of obstructing a train and found them guilty only of trespass. At the end of the trial three of the jurors met with the defendants in the hallway, hugged them and agreed to join them for an upcoming climate lobby day. Were it not for the judge’s firm instructions, they said they would have voted to acquit. The Delta 5 are appealing the decision.
A kind of “municipal climate disobedience” is also emerging. In Deerfield, Massachusetts, this February, the Texas-based Kinder Morgan company asked the Massachusetts Department of Public Utilities, or DPU, to force the more than 400 property owners along the route of its proposed Kinder Morgan natural gas pipeline to allow company surveyors on their land. In reply, the town of Deerfield wrote the DPU that its Board of Health has forbidden all activities of Kinder Morgan in the town. The health board had said that “a corporation convicted of felonies resulting in the tragic deaths of five people presents an unreasonable risk to the health and lives of residents of Deerfield if such [a] felon were to be allowed to build a massive fracked gas pipeline through the town.”
The Select Board of the town warned that anyone entering onto private properties without permission from the property owners for activities related to the proposed natural gas pipeline will be arrested for trespassing – even if they have an order from the DPU. A lawyer representing the town said Deerfield is “prepared to supersede any state authority and have police officers arrest anyone who enters onto private property as part of the pipeline project.” Kinder Morgan claims the federal Pipeline Safety Act preempts any state’s authority to regulate pipeline safety and that certain state laws trump the town’s orders.
While nobody should commit civil disobedience in the expectation that they will be acquitted on constitutional or public trust grounds, these cases show that we can expect a growing proportion of our neighbors and fellow citizens – including some who serve as judges and juries – to recognize that climate change must be halted by all means necessary and that our actions hasten that result.
A climate insurgency?
Break Free From Fossil Fuels may be the harbinger for a global nonviolent climate insurgency. It is globally coordinated, with common principles, strategy, planning and messaging. It is utilizing nonviolent direct action not only as an individual moral witness, but also to express and mobilize the power of the people on which all government ultimately depends. It presents climate protection not only as a moral but as a legal right and duty, necessary to protect the Constitution and the public trust for ourselves and our posterity. It represents an insurgency because it denies the right of the existing powers and principalities – be they corporate or governmental – to use the authority of law to justify their destruction of the earth’s climate.
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