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.

 

Season of Hope on Climate Change

Today the cause of combatting climate change gains a very important ally. Pope Francis has issued a papal encyclical on climate change that throws the full moral weight of the world’s largest religious organization in favor of taking action to preserve the planet.

His Holiness has not spoken to us directly, but it’s pretty clear that he is trying to influence public opinion in the critical months leading up to the UN Climate Summit this December in Paris.  The UN Meeting in Paris represents possibly the last clear chance to limit the harm from climate change to a further increase of no more than 2 degrees Celsius, which many climate scientists think is the limit the planet can endure without a full scale catastrophe.

Between now and December, we expect to hear much more from the Pope on climate change, particularly when he visits the United States this Fall and speaks to a joint session of Congress on September 23 and the UN General Assembly onSeptember 25.

We hope to be enlisting a lot of support from lawyers between now and December. We have just launched our social media campaign with three blog posts.

Please check them out and most importantly, share them with others, and ask them to sign the Petition for Immediate Government Action on Climate Change.

We are planning activities now for the remainder of the year, including educational programs at law schools and bar associations around the country. We will share updates about our progress and news item of great interest.

Economists Agree on the Solution to Climate Change

By now everyone should know that there is no reasonable debate among scientists that global climate change AKA global warming is real, is caused by greenhouse gas emissions primarily carbon dioxide (CO2), and will cause catastrophic consequences for humans in the coming decades if we do not substantially reduce emissions soon. If you doubt any part of that statement, check out Lawyers Should Listen to Scientists on Climate Change.

What seems to be less well known is that there is a near universal consensus among economists that the most effective way to reduce CO2 emissions is through some type of carbon pricing policy.

In the United States, proponents of a carbon pricing to reduce CO2 emissions include well known economists such as:

That’s just some of the many prominent economists who support carbon pricing. In fact, most economists support carbon pricing because it would make using fossil fuels more expensive, so people would use less of them. At the same time it would make other alternatives—like conservation and renewable energy sources much more attractive. It would “unleash a wave of innovation to develop technologies, lower the costs of clean energy and create jobs as we and other nations develop new energy products and infrastructure,” as Hank Paulson said.

One particularly attractive alternative is the carbon fee and dividend proposed by Citizens Climate Lobby. Under this proposal, all of the revenues collected would be returned to citizens on a per capita basis. As George Schultz has said, “It’s not a tax if the government doesn’t keep the money.”

We already know that climate change is a serious problem that must be addressed soon or our children will face a world growing increasingly unlivable. Now we know that there is a solution endorsed by all serious economists. Faced with this knowledge, we as lawyers should do all we can to convince elected officials to establish effective carbon pricing now.

You can start by signing the Petition for Immediate Action On Climate Change

Lawyers Should Listen to Scientists on Climate Change

As lawyers, one thing we know is the value of specialists and specialized knowledge, of all types. If you’ve got an ERISA issue, talk to an ERISA lawyer. If you’ve got a skin growth, talk to a dermatologist. We count on specialists to give us advice not based on their own quirky view of the problem, but instead based on the knowledge and learning of people in their field.

On climate change, we should listen to people like Richard Alley, Ph.D., of The Pennsylvania State University. Richard is a geologist who studies glaciers and climate change. He is widely recognized in the scientific community for his research and scholarship on climate change aka global warming.

Richard spoke to a meeting of lawyers in Philadelphia in the fall of 2014 and shared the basics about climate change. Video clips of Richard’s talk are available on our web site, but in case you don’t have time to review them, here is the quick recap:

  • “Yes it is getting warmer.” There is no reasonable doubt among scientists that the planet is getting warmer.
  • The Fifth Grade Version of Climate Change. The cause of the warming is carbon dioxide (C02) caused by human activity. C02 is invisible but it does have mass and weight, and the average American pumps 40,000 pounds of it a year into the atmosphere. “This cannot continue.”
  • “It’s physics!” People ask Dr. Alley whether he believes in global warming. He doesn’t believe it—he knows it because it’s physics. There is no scientific debate on the subject because the scientific facts are the scientific facts.
  • “The uncertainties are all on the downside.” During all the time humans have been on earth, we have never caused CO2 in parts per million to be anywhere near this high. The consequences for life on earth are projected to be very bad in the relatively near future, but they could be even worse sooner.

The insights that Dr. Alley shared in Philadelphia are not unique. Many other scientists have spoken out on these same points, and the world’s leading scientific organizations have recognized a broad scientific consensus on the cause and urgency of climate change. The inescapable conclusion is that we must reduce CO2 emissions. To find out how we can do that in a way in a way that will stimulate economic growth, check out Economists Agree on the Solution to Climate Change

We need the help of all people of all walks and calling, but lawyers and the legal community can and should take a leadership role. You can start by signing the Petition for Immediate Action On Climate Change.

Calling All Counsel Concerning Climate Change

This is the inaugural post for the blog of A Call to the Bar: Lawyers for Common Sense on Climate Change. We are lawyers (including law students) dedicated to convincing government to take immediate action to substantially reduce CO2 emissions. Our group is unique in focusing our call to action at lawyers. We support the efforts of all the other groups and people dedicated to saving the planet. We believe that lawyers when motivated to help can be particularly effective in the fight against climate change.

  • As lawyers, we are highly educated and can understand the facts about climate change, the availability and feasibility of a solution, and the grave consequences of not acting soon.
  • Creating effective arguments and convincing policy makers is a core function of lawyers.
  • We exercise a great deal of influence over elected officials. In fact, many if not most elected officials are lawyers. The same is true of lobbyists.
  • The solution to climate change must be expressed in law, and lawyers will write the law.
  • Climate change is at its core a justice issue, and promoting justice is our most important function as lawyers.

While there are many people already working on convincing government to take action on climate change, the general public is not yet demanding action because there is a lack of understanding about the facts of climate change and the urgency of the problem. We hope to stimulate action by focusing on lawyers and the legal industry. We encourage people in all other professions, vocations, and callings to do the same.

Robert Kennedy said: “Each time a person stands up for an ideal, or acts to improve the lot of others, or strikes out against injustice, he sends forth a tiny ripple of hope, and crossing each other from a million different centers of energy and daring those ripples build a current which can sweep down the mightiest walls of oppression and resistance.” We want to be a ripple.

The timing of our actions is critical. This year 2015 will end with the UN Climate Meeting in Paris in December. Pope Francis is expected to issue an encyclical on climate change this month. We believe that our actions between now and December could help to convince elected officials to take action this year. But we will continue working on this issue until the fight is won.

We intend to achieve our goal by taking the following steps and encouraging other lawyers everywhere to do the same.

  1. Educate ourselves and other lawyers about the problem, the solution, and the need for action.

Climate change is simultaneously a very simple and incredibly complex problem, which helps to explain why it has been the subject of so much misinformation. Educating ourselves and other about the basics is one of the most effective strategies for fighting climate change.

Lawyers and law students can organize educational programs at bar organizations and law schools featuring knowledgeable speakers about the problem, the solution, and the need for action. If you need help organizing a program in your community, volunteer lawyers from A Call to the Bar can help. Contact info@calltothebar.org.

  1. Adopt resolutions, declarations, and petitions calling for immediate government action on climate change and encouraging others to do the same.

Don’t underestimate the power of formal resolutions, declarations and petitions. The United States of America began with a declaration.

To date, three bar associations have passed strong statements calling for government action on climate change.

We need many more bar associations, including student bar associations, to pass resolutions on climate change! We are actively seeking to work with bar associations and student bar associations that are interested in passing resolutions. If you need help, contact info@calltothebar.org.

We also encourage everyone, non-lawyers included, to show their support for A Call to the Bar by signing the Petition for Immediate Action On Climate Change. Please sign it now.

  1. Talk to elected officials about the need for government to take immediate action to substantially reduce C02 emissions.

Whenever we have the chance, we seek to tell our elected officials, including perhaps most importantly members of Congress, about our concern over climate change and the need to adopt carbon pricing to fight climate change. This is not a partisan issue. We seek the support of members of both of our major political parties as well as independents and others.

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There are many issues that we call care about and as to which we may have differences of opinion. But climate change unites us all, because it will affect us all. We hope that lawyers and law students everywhere will join in the call for action. We believe that our children and grandchildren will thank us.