August 28, 2015
05.10.2011 - 03:31PM
By CSRwire Contributing Writer Francesca Rheannon
Advocates for the Earth are dusting off old legal concepts and developing new ones to bring the fight to save the environment to the courts.
When my son was sixteen years old, he said to me in a voice filled with despair, "I hope the Earth will still be liveable when I am forty." The pathos of his comment struck me dumb. What could I say to him that wouldn't smack of soothing nostrums and promises that even then I feared would turn out to be false?
In only nine years now, my son will be forty – and kids his age when he shared his fears with me are beginning to fight for their future and his. And they're taking it to the courts.
On May 4, young climate activists began filing what will eventually become 52 lawsuits and petitions against the U.S. federal government, the states and the District of Columbia to force them to pass laws slashing greenhouse gas emissions in order to prevent catastrophic global warming.
Led by 16-year-old Alec Loorz of Ventura, California, who founded Kids vs. Global Warming, and aided by lawyers and scientists, the teens' campaign to force climate action in the courts comes in the face of legislative paralysis on the climate and a conservative juggernaut in Congress aiming to eviscerate environmental laws and prevent the EPA from regulating greenhouse gas emissions. They are joined in the suits by the nonprofit groups Our Children's Trust, and Wildearth Guardians.
The plaintiffs charge that by failing to take action against global warming, the federal government has violated its legal obligation to protect the atmosphere as a resource that belongs to everyone.
The suits are based on the ancient but still employed legal principle called the "public trust doctrine." It postulates that certain resources must be preserved for public use through the generations and that it is the government's responsibility to maintain them for this use. (It underlies, for example, the requirement that hunters obtain permits so that wildlife is preserved.)
Although it has never before been applied to protecting the atmosphere, the relevance of the public trust doctrine to global warming is apparent. Pete McCloskey, former Republican congressman and now an attorney on the case, described it as "the most common-sense, fundamental legal footing for the protection of our planet."
As I wrote back in November, the battle to save the climate is increasingly being enjoined in the courts. What is new is a growing movement to redefine the scope of jurisprudence itself, shifting it away from privileging private, individual, short-term interests over the long-term collective interests of the public, future generations and even ecosystems.
The suits being brought by Kids vs. Global Warming and its allies broaden the public trust doctrine to define current and future generations of humans as the interested party. But the movement to create what South African environmental attorney Cormac Cullinan (among others) calls "Earth Jurisprudence" goes far beyond that. It seeks to establish rights not only for the public, but also for nonhuman natural entities, including wildlife, rivers, forests and whole ecosystems. Like the Lorax, Cullinan argues for a jurisprudence that "speaks for the trees."
Writing in his book, Wild Law: A Manifesto for Earth Justice, Cullinan says a paradigm shift in law and governance is necessary, one that will "promote human behavior that contributes to the health and integrity not only of human society but also of the wider ecological communities and the earth itself."
Cullinan quotes Thomas Berry, who laid out a set of principles for an "Earth Justice" system: "Since the universe is a communion of subjects and not a collection of objects, it follows that all the members of the universe are subjects capable of holding rights and have as much right to hold them as humans." Cormac adds, "What this says is that the rights of the members of the earth community are indivisible; there cannot be rights for some without there being rights for all."
But rights for non-humans also means our survival, a point that is lost in the prevalent cultural dichotomy between the human and wild. That view, assigning rights to the former while making the latter an object for exploitation, provided the ideological underpinning for the development of capitalism. But it is suicidal for humans in the 21st century, since the "well-being of each member of the earth community is derived from the well being of Earth as a whole."
It's also a notion current among some portions of the environmental community, who feel that the planet would be better off without humans. But the most exciting aspect of putting humans squarely within the circle of Nature (as if it could be any other way!) is the role it gives us of contributing positively to ongoing evolution of our Earth. As Cullinan writes, "the purpose of governance would change... Our governance efforts would focus on increasing the sophistication of our regulatory systems to ensure that the net impact of humans strengthened rather than weakened the web of life."
That role of stewardship is obvious to my seven-year-old granddaughter. She assumes not only that Earth will be liveable when she grows up, but that she will be responsible for making sure of it. She told me recently she plans to "go around the world saving the animals." The paradigm shift has already begun.
About Francesca Rheannon
Francesca is CSRwire's Talkback Managing Editor. An award-winning journalist, Francesca is co-founder of Sea Change Media. She produces the Sea Change Radio's series, Back to The Future, and co-produces the Interfaith Center of Corporate Responsibility's podcast, The Arc of Change. Francesca's work has appeared at SocialFunds.com, The CRO and E Magazine, and she is a contributing writer for CSRwire. Francesca hosts the nationally syndicated radio show, Writers Voice with Francesca Rheannon.
This commentary is written by a valued member of the CSRwire contributing writers' community and expresses this author's views alone.
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