Why Every Lawyer Should Care About Climate Change

On November 20, 2015, the House of Delegates of the Pennsylvania Bar Association will consider a resolution calling for government to acknowledge and act on the urgent problem of climate change caused by human activity. As a supporter of the resolution, I have been asked “why is this an issue for lawyers and the bar association?”

In my view it comes down to a question of justice, as the undeniable effects of climate change will include disruption of the life, liberty, and property of people in our country and throughout the world. Solutions are available. They need to be debated, adopted, and expressed in law. But social, political, and economic forces prevent many elected officials from even acknowledging the problem, much less pursuing solutions.

As a community of lawyers, one of our primary concerns should be furtherance of justice. Faced with one of the greatest challenges our society has ever faced, it is right that lawyers should speak out in favor of solutions through law. This falls squarely within PBA’s mission: the advancement of jurisprudence, promotion of justice, protection of the disadvantaged, and advancement of proper legislation.

In June of 1963, President John F. Kennedy convened 244 leading lawyers from throughout the United States, including leaders from the state bars and the American Bar Association, to a meeting at the White House where he asked for their support on civil rights through law.

Days before that meeting, the President gave one of the most important speeches of his life, calling on “every American” to “stop and examine [their] conscience” on the subject of racial justice.

The need for action on civil rights in the summer of 1963 was undeniable. As President Kennedy recognized, “events in Birmingham and elsewhere have so increased the cries for equality that no city or state or legislative body can prudently choose to ignore them.”

The need for action on climate change is now undeniable. Just as the support of the legal community was needed in 1963 on civil rights, so too is it now needed on climate change.

 

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Steve Harvey

President, A Call to the Bar: Lawyers for Common Sense for Climate Change

 

 

This is an excerpt of an article that was originally published in the October 2015 issue of the Pennsylvania Bar Association Environmental & Energy Law Section Newsletter. Click here to read the full newsletter, including the full resolution and full article (located on page 6)

Hats Off to These House Republicans for Critical Support on Climate Change Action

These courageous and principled Republican members of the U.S. House of Representatives recently signed onto a resolution (the “Gibson Resolution”) that Congress should address the problem of climate change.

Rep. Chris Gibson (Hudson Valley and the Catskills regions)

Rep. Ryan Costello (suburban Philadelphia)

Rep. Carlos Curbello (south of Miami)

Rep. Bob Dold (suburban Chicago)

Rep. Mike Fitzpatrick (suburban Philadelphia)

Rep. Richard Hanna (Central New York)

Rep. Patrick Meehan (suburban Philadelphia)

Rep. David Reichert (rural Washington)

Rep. Ileana Ros-Lehtinen (Miami-Dade County)

Rep. Elise Stefanik (Adirondack Mountains and the Thousand Islands region)

Rep. Frank LoBiondo (South Jersey)

The Gibson Resolution states as follows:

Resolved, That the House of Representatives commits to working constructively, using our tradition of American ingenuity, innovation, and exceptionalism, to create and support economically viable, and broadly supported private and public solutions to study and address the causes and effects of measured changes to our global and regional climates, including mitigation efforts and efforts to balance human activities that have been found to have an impact.

The full text of the Gibson Resolution can be found here:

At a time when partisan politics seems to prevent progress on any of a number of important problems, it is refreshing to see that some of our elected officials can rise above the fray and put their constituents and their country first.

Please show your support and appreciation by calling any one or all of their offices to thank them for taking a stand on the very real and urgent problem of climate change. If you know one of their constituents, ask that person to call and thank them too.

It’s easy to call any one or all of them by using this link.

They all deserve our thanks! We support a non-partisan solution to climate change.

Climate Change and National Security Speech At Temple Law School on October 14

Rear Admiral David W. Titley, United States Navy (Retired) will be the featured speaker at a program entitled “Climate Change and National Security: People, Not Polar Bears” on October 14, 2015, beginning at noon, at Temple University Beasley School of Law in Philadelphia, PA.

The program is free and open to the public, but registration is strongly suggested by sending an email to info@calltothebar.org or calling 215-392-6781.

No one need starve; complimentary lunch will be provided.

 

Dr. Titley is a nationally known expert in the field of climate, the Arctic, and National Security.  He served as a naval officer for 32 years and rose to the rank of Rear Admiral. Dr. Titley’s career included duties as Oceanographer and Navigator of the Navy. While serving in the Pentagon, Dr. Titley initiated and led the US Navy’s Task Force on Climate Change. After retiring from the Navy, Dr. Titley served as the Chief Operating Officer at the National Oceanic and Atmospheric Administration.

Dr. Titley currently serves as Professor of Practice in the Department of Meteorology at the Pennsylvania State University. He is also the founding Director of Penn State’s Center for Solutions to Weather and Climate Risk.

In addition to Dr. Titley, Prof. Amy Sinden of Temple University Beasley School of Law will offer remarks about the Clean Power Plan and the 2015 United Nations Climate Change Conference to be held in Paris, France, from November 30 to December 11, 2015.

The program is sponsored by Temple University Beasley School of Law, with the following co-sponsors:

  • The Philadelphia Bar Association
  • Pennsylvania Businesses for a Health Environment
  • The Pennsylvania Environment Council
  • The Temple Environmental Law Center
  • Penn Future
  • Penn Environment
  • The Clean Air Council
  • A Call to the Bar: Lawyers for Common Sense on Climate Change

TItley Poster

Information about direction and parking can be found here: http://www.law.temple.edu/resources/directions/

Get the “Love the Pope” Tee Shirt

Pope Francis comes to the United States next week with a message of love, hope, and concern for all people and the planet.

He will arrive in Washington, DC, on Tuesday, September 22. On Wednesday, September 23, he will meet with President Obama at the White House. On Thursday, September 24, he will address a joint session of Congress. That night he will travel to New York City, where he will address the UN General Assembly on Friday, September 25. On Saturday, September 26, he will come to Philadelphia for the World Meeting of Families. While here, he will give a speech at Independence Hall, visit a prison, say mass on Ben Franklin Parkway, and then fly back to Rome that same night.

And you thought you had a busy schedule.

Throughout his U.S. visit, Pope Francis is expected to emphasize concern for the poor and disadvantaged, the need for moral and spiritual growth, and the crucially important issue of environmental degradation of the planet, including the need to fight climate change.

As people of conscience committed to fighting climate change, we come from diverse religious traditions or no religious tradition at all.  But when it comes to climate change, we love the Pope because of the strength and clarity of his message. He reminds us that this is a moral issue.

To commemorate the visit of Pope Francis, we have commissioned a limited run of tee shirts with the “Love the Pope” logo on the front and the words “Lawyers for Common Sense on Climate Change” on the back for the first 100 people who make a minimum donation of $20 to A Call to the Bar through the donate button on our web site. Also, send us an email at info@calltothebar.org with the size of the tee shirt (youth large, and adult M, L XL, and XXL). We will ship as soon as possible so hopefully they will arrive in the mail before the Pope gets to Philadelphia.

Final Pope Logo

A Call to the Bar is a Pennsylvania non-profit corporation, and all funds are used to further our mission. We are not a tax exempt organization under IRS Code section 501(c)(3). We decided not to seek tax exempt status because that would place legal limits on our lobbying efforts, and we will accept no limits on our efforts to convince elected officials of the need for immediate government action on climate change.

Courts Should Uphold the Clean Power Plan

On the first Monday in this sweltering month of August 2015, which is on track to surpass 2014 as the hottest year on record, the Environmental Protection Agency (EPA) issued a groundbreaking new set of safeguards designed to fight climate change and protect public health. The new standards, known as the Clean Power Plan, set limits on carbon pollution from power plants. It’s the first effort by the United States to tackle one of its, and the world’s, biggest problems. As we approach the international meeting on climate change in Paris this coming December, the Plan provides the nation with credible moral high ground as we urge other big nations with carbon pollution issues, like China and India, to take their own substantial steps toward reducing pollution.

The Clean Power Plan is a huge step in the right direction. By providing every state with the opportunity to develop individualized plans to reduce carbon pollution, the Plan calls on every state to act on climate change. The limits are ambitious but achievable: the Plan calls for a 32 percent reduction of carbon pollution from by 2030 from power plants, which make up the largest single source of carbon pollution in the country.

The Clean Power Plan is long overdue. The scientific community has long and repeatedly warned that carbon pollution and climate change are causing the planet to warm. The thought that we may face runaway climate change in our lifetimes, or those of our children, horrifies many. Common sense safeguards to protect us from harm makes sense. And we don’t have to choose between a healthy environment and a healthy economy. Our economy can thrive as new technologies are developed and implemented to meet our energy needs.

Some people don’t see it this way. They oppose the Clean Power Plan and any effort to fight climate change because they believe that polluter profits are more important than the economic and health benefits of cleaner air and cleaner energy.

That is why 15 state attorneys general, led by the attorney general of West Virginia, have asked a federal appeals court in Washington, D.C. to put the Clean Power Plan on hold while they bring a lawsuit to block it entirely. In support of their position, the attorneys general argue that their states will suffer “irreparable harm” if the court does not put the plan on hold.

The harm they claim is that their states will expend resources planning how to reduce carbon pollution from power plants. What about the harm to the rest of us from climate change, such as flooding, droughts, and extreme weather events? This is already occurring, and the impacts of climate change will only grow more severe if we fail to act. This isn’t a close call. The harm to society far outweighs any harm to these states. The court should reject the request to put the Plan on hold.

The court should also reject the argument that the EPA exceeded its authority under the Clean Air Act. Twice since 2005 the Supreme Court has held that the EPA has the authority and the obligation to regulate carbon pollution under the Clean Air Act. Justice Kennedy, the swing vote in many important cases, has been in the majority in both of the decisions. The legality of the Clean Power Plan will surely end up in the Supreme Court. Given the important societal interest in fighting climate change, the Supreme Court’s prior precedent, and the judicial deference owed to the EPA as the agency charged with administering the Act, the Plan stands a good chance of surviving judicial scrutiny.

The coal industry and its supporters have declared war on the Clean Power Plan, because it threatens their investment, and they care about profits. They don’t care about our children.

For the sake of our children, we need to tackle climate change. The Clean Power Plan is an important step in the right direction that deserves the support of all citizens. It should be upheld by the courts.

Why You Should (and How You Can) Show Your Support for Obama’s Clean Power Plan on July 30

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The Facts

Are you aware of the facts on climate change? Let’s check. Do you think that climate change is (a) real, (b) caused by human use of fossil fuels, and (c) likely to get much worse in coming decades unless brought under control by strong measures?

If you answered “yes” to all three parts, then you are a citizen with an accurate assessment of the facts. Your view is shared by the overwhelming majority of scientists who study climate change.

But what are the strong measures that can get climate change under control? There is wide agreement on that issue too: the number one thing we must do is reduce emissions of carbon dioxide (CO2). We are at an all-time-in-human-existence high for CO2 in the atmosphere and that is what is causing the temperature to rise around the globe.

The government of the United States of America is taking strong measure on climate change. By executive order of the President and under the authority granted by Congress in the Clean Air Act, as recognized by the Supreme Court, the Environmental Protection Agency (EPA) is adopting carbon pollution standards for existing for existing power plants that will protect the health of our children and put our nation on the path toward a 30 percent reduction in carbon pollution from the power sector by 2030. The carbon pollution standards for existing power plants are known as the Clean Power Plan.

The Clean Power Plan is a very important and good step toward protecting the planet for ourselves and our children. The EPA is expected to issue the final regulations for the clean power plan early next week, as the New York Times reported today.

Most of the people who control the world’s fossil fuel supply don’t want to reduce CO2 emissions, despite the harm that it being caused, because they make money from fossil fuel usage. They have already paid an army of lawyers, lobbyists, and media specialists to fight the Clean Power Plan in the courts and in the much more important court of public opinion.

It’s critically important that informed citizens speak out and voice their support for the Clean Power Plan. Other measures will definitely be needed, including a congressionally-mandated carbon pricing policy, but the Clean Power Plan is a huge step in the right direction.

Thinking people of conscience agree that strong measures are needed and there is no sound reason why the government of the USA should not implement the Clean Power Plan.

How You Can Show Your Support

On July 30th, there is a campaign for people around the country to show their support for the Clean Power Plan. Numerous environmental organizations are supporting the July 30th Call for Action. You can show your support by doing three things that are easy to do.

First, call you Senators and tell the person who answers the phone who you are and that you would like to leave the message that you support the Clean Power Plan. To find your Senators’ phone numbers, check out this page.

Second, spread the word on social media that you support the Clean Power Plan for all of the reasons explained on the EPA website. Be sure and use these hash tags: #MakeTheCall and #ActOnClimate. You could also send a message through the Environmental Defense Fund.

Third, talk it up with your friends and family.

If for whatever reason you cannot takes these steps on July 30, do them whenever you can. If we all keep doing this we can convince our government to get climate change under control.

Carpe Diem.

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Philadelphia Eagles Lead All Leagues in Sustainability

Several of our volunteers and supporters recently toured Lincoln Financial Field, the home of the Eagles, and learned why the Birds are #1 in sustainability.

As explained to us by tour guide Norman Vossschulte, who serves as Director of Fan Experience, the Eagles are the greenest team in all of American sports. Check out these facts:

  • 100% of the Eagles’ operations are powered by the sun and wind. A total of more than 11,000 solar panels on the roof, over some of the parking spots, and on the front of the building provide 30% of the energy. The rest comes from the purchase of renewable energy credits.
  • Through continuous efforts in recycling and composting, the Eagles have sent no waste to landfills in over two years.
  • A team of 80 people work on game days sorting every bag of trash. With the audio piped into the sorting room, the sorters cheer for their team as they work.
  • The Eagles use no chemicals to clean the stadium, but rely entirely on a water and electrolyte solution that is generated on site and recycled.
  • The Eagles offer beer in aluminum cans with no plastic cups offered, and they recycle the cans, crush them, and sell the aluminum in bulk.

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The Eagles are on the cutting edge of sustainability for American sports teams. As owner Jeffrey Lurie told the New York Times in 2010, “[w]e’ve read a lot that excellent environmental practices are too expensive or not wise for a company. We challenged that.” Major credit goes to Mr. Lurie and his co-owner, Christina Weiss Lurie.

We thank the Eagles for the awesome tour. In addition to all the green stuff, the tour of lockers rooms was pretty cool. Special thanks to Pennsylvania Businesses for a Healthy Climate, which organized the tour.

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American Court Issues Important Climate Change Decision

Earlier this week, we reported on an important ruling by a Dutch trial court. On June 24 The Hague District Court ruled that the Dutch government must ensure that Dutch greenhouse gas (ghg) emissions in the year 2020 will be at least 25% lower than those in 1990. The ruling is important not just because it requires a substantial and quick reduction in Dutch ghg emissions, but also because it could be used to persuade courts in other countries to follow suit.

Media coverage of the Dutch ruling almost completely overshadowed a June 23 decision of potentially equal import issued by an American court in Seattle, Washington.

The Seattle decision requires the Washington Department of Ecology to reconsider its denial of a petition by eight youths who asked the Department to adopt rules that would help restore global atmospheric carbon dioxide levels to 350 parts per million (ppm). Until 1950, carbon dioxide levels had not exceeded 300 ppm in the last 650,000 years, but they exceeded 400 ppm in 2013, and are still rising.

 

Background on the Seattle Decision

In April 2014, Washington Governor Jay Inslee directed the Department to report on recommended updates to Washington State’s current ghg emissions limits and to do so by July 15, 2014. In anticipation of the Department’s report, the youth petitioners filed a petition for rulemaking. In it, they requested that the Department promulgate a rule to “implement science-based emissions limits to put Washington on the global climate stabilization trajectory … [and] protect the integrity of Washington’s and the Earth’s atmosphere, oceans, and climate systems.”

The Department failed to meet the July 2014 deadline. Then in August 2014 it denied the youths’ petition “without challenging the underlying scientific basis for Petitioners’ plea,” as the court noted.

In December 2014, the Department finally issued the report required by Governor Inslee. The Department’s report took note of the reality and urgency of human-caused climate change and of the danger of postponing decisive action by even a few years. Nonetheless, the tardy report recommended “that no changes be made to the state’s statutory emission limits at this time.”

Meanwhile, the youth petitioners had already appealed the denial of their petition to the King County Superior Court in Seattle. They argued in their opening brief that the Department “has statutory and constitutional responsibilities to protect Youth Petitioners’ fundamental inalienable rights to a healthful and pleasant environment and essential natural resources including air and water.” For their legal authority, the youths relied primarily on the Public Trust Doctrine embodied in the Washington Constitution.

Superior Court Judge Hollis R. Hill accepted the argument made by the youths, and remanded the youths’ petition for reconsideration in light of the findings in the Department’s December 2014 report as well as a declaration the youths submitted from a noted climate scientist. Judge Hill also ordered the Department to advise her by July 8, 2015, whether it intends to affirm or deny its decision denying the youth’s petition.

 

Help from Our Children’s Trust

The youth petitioners received assistance from Our Children’s Trust, a non-profit organization that describes itself as “a game-changing, youth-driven, global climate recovery campaign, securing the legal right to a healthy atmosphere and stable climate.” It “supports youth in bringing legal action in courts, administrative agencies and local legislative bodies to enforce the Public Trust duty of government to protect natural resources, including the atmosphere, for the benefit of all present and future generations.”

A key supporter of Our Children’s Trust is noted climate scientist Dr. James Hansen.

 

Importance of the Decision

The importance of this decision cannot be overstated. In its 2011 decision in American Electric Power Co. v. Connecticut, the U.S. Supreme Court rejected a lawsuit seeking abatement of carbon dioxide emissions based on a federal common law theory, thereby dampening hopes for any litigation strategy in federal court to mitigate carbon dioxide emissions. The Seattle decision suggests that state courts could be the key to any future efforts in the United States to bring about climate change solutions through the judicial system. 

 

–This article was contributed by Paul R. Kennedy, a lawyer in Boston, Massachusetts.

 

Photo Credit: artzenter / Shutterstock.com

Court Orders Government to Do More to Fight Climate Change

The fourth week of June 2015 saw important legal rulings. One of the most important judicial decisions didn’t have to do with marriage or health care. It didn’t come from the U.S. Supreme Court. Or any other appellate court. Or any court in the United States.

It came from a trial level court in The Netherlands.

On June 24, 2015, the Hague District Court ruled that the Dutch government has to ensure that Dutch greenhouse gas (ghg) emissions in the year 2020 will be at least 25% lower than those in 1990. The ruling is important not just because it requires a substantial reduction in Dutch ghg emissions quickly, but also because it could be used to persuade courts in other countries to follow suit.

The Dutch ruling (translated into English here) concludes that “the possibility of damages for those whose interests Urgenda represents, including current and future generations of Dutch nationals, is so great and concrete that given its duty of care, the state must make an adequate contribution, greater than its current contribution, to prevent hazardous climate change.”

The plaintiff in the Dutch case is Urgenda (“urgent” and “agenda”), a Dutch foundation that “aims for a fast transition towards a sustainable society with a circular economy” and 900 co-plaintiffs. More information about Urgenda and the Dutch ruling is available here.

The idea for the Dutch climate case came from the book Revolution Justified written by Dutch lawyer Roger Cox, who is also one of the lawyers representing Urgenda.

Urgenda / Chantal Bekker

As support for its ruling, the court relied on the United Nations Framework Convention on Climate Change, adopted in 1992. All UN member states signed that treaty. Although the UN Framework Convention on Climate Change set no limits on ghg emissions and is therefore considered legally non-binding, the Dutch ruling shows that the treaty can be used by courts to require national governments to take steps urgently needed to protect the planet and its inhabitants.

Under United States law, treaties have the force of law, equivalent to a federal statute. Theoretically, a federal court in the United States could issue a ruling similar to the Dutch ruling, but the U.S. Supreme Court in the 2011 decision of American Electric Power Co. v. Connecticut rejected a lawsuit seeking to force the largest emitters of CO2 in the nation to reduce emissions on the grounds that the Clean Air Act authorizes the Environmental Protection Agency (EPA) to address climate change and therefore federal courts cannot make law on that same subject. The EPA is currently exercising that authority with its Clean Power Plan. Many climate scientists and concerned citizens support the Clean Power Plan but believe it will not provide the deep reduction in ghg emissions soon enough to avoid catastrophic climate change.

A successful lawsuit in the United States to force substantial reductions in ghg emissions seems unlikely at this time. But there is hope that the Dutch ruling could lead courts in other nations to follow suit. A lawsuit has already been filed in Belgium and one is in preparation in Norway.

One issue with the Dutch ruling is that it does not specify how the Dutch government can achieve the required reduction in ghg emissions. The best way to make that happen is through carbon pricing.

If you think that the Dutch ruling isn’t as important as the historic decisions handed down this week by the United States Supreme Court on same sex marriage and the Affordable Care Act, then consider this statement from the summary of the Dutch court’s ruling:

“In climate science, it has been widely accepted since at least 2007 that the emission of greenhouse gasses by humans, especially CO2, through the burning of fossil fuels, such as coal, oil, and gas, makes it highly probable that dangerous climate change will occur within several decades with irreversible and grave consequences for people and the environment.”

The Dutch ruling, coming one week after Pope Francis issued his papal encyclical on climate change, signals that worldwide concern is taking hold and responsible leaders are beginning to take action.

Health care and civil rights for all are very good things, but continued existence is a prerequisite.

 

Photo credit: Urgenda/Chantal Bekker. Top photo: The Dutch court reading the summary of its ruling. Bottom photo: Urgenda lawyer Roger Cox after winning the historic Dutch climate case.

Climate Change: It’s Up to You New York, New York

The juggernaut that is A Call to the Bar: Lawyers for Common Sense on Climate Change hit the Big Apple in a big way on May 14, 2015, as volunteers Yolanda Pagano and Steve Harvey met with the Environmental Committee of the New York City Bar Association to discuss why lawyers should take a leadership role on climate change.

We were too late. Lawyers in New York are already leading the way. In 2009, the NYC Bar Association endorsed a Statement of Principles calling for strong government action on climate change, including carbon pricing, without which we will never control our future.

Yolanda Pagano

Yolanda Pagano

And in September 2014, right after the huge climate rally in New York, the NYC Bar Association hosted a program that featured New York Attorney General Eric Schneiderman, who made some of the strongest statements heard yet about lawyers taking a stance on climate change.

  • “while the evidence and the technical solutions for dealing with climate change may come to us from scientists and engineers, it will be public officials, lawyers and activists who will determine how – or if – those solutions get implemented.”
  • “we all need to ratchet up our creativity and our outreach to make it clear for everyone to understand, and easy for everyone to understand, that climate change is already affecting each of us, it’s affecting our communities, it’s affecting our friends and family, and that it will get worse very quickly if we do not mobilize to demand action both from the government and from leaders in the private sector.”
  • “We’re not going to see real action from politicians and business leaders until we create a much broader shift in public consciousness.”

Hear him. Hear him.

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left to right: Mike Mahoney, Jeff Smith, Stephen G. Harvey

 

Hats off to the NYC Bar Association and its Environmental Committee (chaired by the estimable Mike Mahoney of Pfizer) for being out front on climate change. And thank you Attorney General Schneiderman. We need many more elected officials with your understanding and passion on this critical issue, regardless of political stripe.