Can the Center Hold?

The Challenge to Mainstream Environmentalism

Is environmentalism facing a paradigm shift? Since the 1970s, mainstream environmentalists, lawyers, and scholars have sought incremental progress based on established law and political realities. But frustration with that approach is palpable. The face of climate advocacy is now seventeen-year-old activist Greta Thunberg rather than Establishment politician Al Gore. And there is growing frustration with conventional approaches.

The Juliana case is one sign of this frustration. The plaintiffs, a group of young people, claimed that the federal government had violated their constitutional right to a livable climate, putting them and their futures at risk. This claim was far outside the parameters of existing constitutional law. The Supreme Court has held that the Constitution does not protect the right to food, the right to an education, the right to medical care, or the right to police protection. Given that background, the argument did remarkably well in court. The trial judge accepted the argument. On appeal, the majority expressed sympathy with the argument, though it rejected the case on standing grounds, while the dissenter accepted the plaintiffs’ case entirely. The openess of these judges to leaping far past existing precedent is a sign of immense frustration with the normal channels of legal change in the face of the climate crisis.

The response of the legal establishment to the plaintiffs’ loss is also telling.  In a thoughtful post last week, Ann Carlson described how her view of the case changed from initial skepticism to a sense that “if ever a case called out for judicial intervention, this appears to be it.” And as she explained, she was not along in her reaction:

“Robinson Meyer, the excellent Atlantic environmental writer, admits that he ignored the case until he read the powerful Juliana dissent. It changed his mind, according to the headline accompanying his article, or at least moved him to think differently about the case. Meyer’s reaction was hardly unique. Mike Gerrard, the director of the Sabin Center on Climate Change at Columbia Law School, lamented in the New York Times that  ‘for now, all three branches of the federal government are sitting on their hands as the planet burns.’ Other lawyers expressed fury that the court had dismissed the case without a trial.”

Among the broader public, there also seems to be a growing sense that something dramatic and new is needed.  The Green New Deal is as far outside of normal political expectations as the Juliana case is outside of normal legal expectations. After the next election, Democrats would be doing well to gain a slim Senate majority, and most of the new House members elected in 2018 are moderates. It’s hard to see how a trillion-dollar-plus climate plan could emerge from that Congress. And yet the Green New Deal has reset the benchmark, pushing even moderate Democrats like Biden to propose plans that go far beyond those of the Obama Administration.

Some of this, maybe most of it, has to be due to Trump. If Clinton had won, the U.S. would have worked to strengthen the Paris Agreement and make incremental climate progress at home. There would have been a sense of building momentum. Now, instead, we are fighting desperately to save what incremental progress was made under Obama. As the scientific evidence mounts that we need urgent climate action, our President is doing everything he possibly can to expand the use of fossil fuels.

It’s not just Trump, however. There’s also a growing sense that “politics as usual” is not up to dealing with a problem this big and in need of immediate action. The appeal of Bernie Sanders and Elizabeth Warren is based on a sense that our democratic system is faltering, prey to the influence of billionaires and corporate giants like oil companies, and constitutionally biased in favor of a rural minority. Even the Establishment is troubled. The NY Times split its Democratic endorsement between a Progressive (Elizabeth Warren) and a moderate (Amy Klobuchar). The Times admitted that it would normally be inclined to endorse the more establishment candidate. It went on, however, to express its lack of uncertainty about the most viable approach: “But the events of the past few years have shaken the confidence of even the most committed institutionalists. We are not veering away from the values we espouse, but we are rattled by the weakness of the institutions that we trusted to undergird those values.”

How this plays out will depend on whether our institutions can be made to work well enough to regain our trust.  The jury is still out on that one. In the meantime, however, we also need to continue to fight for whatever incremental progress we can make in the here and now. And we need to continue to hold the line wherever possible against environmental rollbacks.  Every ton of carbon emitted now will linger in the atmosphere for decades or centuries. For that reason, every ton of emission reduction is a victory for future generations.

 

 

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Reader Comments

5 Replies to “Can the Center Hold?”

  1. we have to deal with the laws as written as opposed to the laws we would like to have. The Juliana majority seems to be the correct decision. the proper approach in our Constitutional form of government is to have the other branches change the law. we had to pass a Civil Rights law in 1964. if the voters are concerned enough about climate change, they will make sure they elect representatives to do something about it.

  2. “Every ton of carbon emitted now will linger in the atmosphere for decades or centuries”. this may be true but we should not obsess about individual tons of carbon. You are beginning to sound like Barry Goldwater regarding extremism in the defense of democracy. we do know with enough precision the amount of carbon that will push us past the point of no return–if such a point exists. Often times our institutions change direction like battleships. they take time. This is generally a good characteristic. that is how the center holds…and moves.

  3. Juliana was entirely predictable. Maybe the Dissent was a surprise. But all Standing doctrine is saying is that ‘the courts are not the problem. The responsibility lies with Congress’. Congress needs to amend the Clean Air Act to mandate deadlines and specific action and if they continue to fail at thus then shame on the People. Its a completely inadequate Constitutional system frankly. but

  4. It’s typical that climate disruption is considered part of a panoply of legal tensions among the discussants. This indicates not enough knowledge of basics of workings of Earth’s climate.

    While there are non-linear events which might be triggered, those associated with the overused and abused words “tipping point”, that isn’t the problem. The problem, rather, is that CO2 is a very long-lived greenhouse gas and that more than a third of what we put in atmosphere will remain for thousands of years. 40% of what we emit eventually finds its way to oceans and soils, although this takes some time. While that process is not assured in quantity as temperatures rise, and when soils and oceans are pushed as climate disrupts, while the 100% lingers in atmosphere it raises Earth’s temperature over the course of decades, and mostly within the first. (Why that happens isn’t difficult to understand … Explainable in less than 500 words, but the explanation isn’t appropriate here.) There’s no surprise to this. The physics have been known for two centuries, and in detail for over one. There is no “point of no-return”. There is a steady deterioration, and there may be surprises along the way because the RATE at which we are forcing climate with our emissions is unprecedented in tens of millions of years, even if we’ve not exceeded quantities seen in the past couple of million.

    The legal theory in JULIANA V UNITED STATES not only urges judicial intervention, it also says environmental law as conceptualized and practiced is a failure: It provides a steady stream of permits for the destruction of the environment and the climate.

    The failure to understand this and act is much bigger than the appropriateness of JULIANA or judicial intervention. It is whether or not the Constitution of the United States is capable of solving this problem. There is every reason, both seen from behavioral economics and in the response of our and many representative democracies, to anticipate the people of the United States are not capable of solving this problem either. They may eventually rise in response to horrors created by climate disruption. But the lags are beyond their parsing, and when symptoms are severe enough to motivate action, there will be decades of additional warming and its consequences baked in.

    Accordingly, I no longer have confidence this problem will be solved using political or judicial or legislative means. I assess it will be solved, by those corporate and other interests who perceive harm to their wealth from it. But by failing to step up and embrace technical solutions as they are, or having politicians strongly lead to devising such solutions, the greater public are surrendering control over their futures. That they lose control seems to me to be the cost of abdicating responsibility, and only seems fair.

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About Dan

Dan Farber

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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