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September 30, 2019 NEWSLETTER

Towards Climate Rule of Law

Jay Monteverde
Youth plaintiffs and their lawyers in the Juliana v. U.S. climate case speak to supporters after an appellate oral argument on June 4, 2019

Youth plaintiffs and their lawyers in the Juliana v. U.S. climate case speak to supporters after an appellate oral argument on June 4, 2019

In early 2017, after four years managing programs in the ABA Rule of Law Initiative’s (ABA ROLI’s) China office, I returned to the US to focus on expanding ABA ROLI's environmental rule of law programming. In that role, one of the programs to which I have had the great privilege to help build is the global lead paint elimination project. Through that project, ABA ROLI and partners, led by UN Environment, promote environmental health by assisting countries to draft laws restricting lead in paint. These restrictions allow countries to better protect children's cognitive and development potential — children’s intellectual birthright. I am extremely proud to have helped ROLI contribute to addressing this and other critical environmental rule of law problems.

Last month, I began a new position aimed at protecting another birthright of future generations: the fundamental right to a safe climate capable of supporting human life. I joined Our Children’s Trust (OCT), an advocacy organization bringing and supporting strategic climate litigation such as its flagship case Juliana v. U.S., in which 21 youth plaintiffs are suing over the impact of the U.S. government’s long-standing support for fossil fuels on their due process, equal protection, and public trust rights, seeking a court order mandating that the federal government take action to protect those rights. OCT’s cases are part of a growing wave of climate litigation in the U.S. and around the world that have gained traction in recent years. I have joined OCT’s Global Program, focusing on non-U.S. cases in partnership with local lawyers, organizations, and youth.

My decision to move on from ABA ROLI was difficult, but I ultimately felt it necessary due to the tremendous global warming challenge we face. The warming-generated climate crisis poses an existential threat to every single one of us and to all living things collectively. It endangers the most basic aspects of our planet’s habitability, including water availability, food security, and a temperature range that can sustain human life. By threatening the very foundations of life, global warming sends destabilizing tremors up through society's building blocks, institutions, and systems. The principles for which ABA ROLI stands — including the rule of law as a means to promote justice, economic opportunity, and human dignity — are vulnerable to this destabilization. The UN special rapporteur on extreme poverty and human rights has warned of a coming “climate apartheid,” a social Darwinian dystopia where only those with financial means can truly survive a hotter planet while everyone else suffers from lethal heat waves, severe storms, disease, food insecurity, and lack of water access. The report states that lower income communities and countries will face the worst consequences, with developing countries estimated to spend 75% of the total cost required to adapt to a hotter planet, though the poorest half of the world have only been responsible for some 10% of carbon emissions. Such circumstances place the rule of law and individual rights at great risk. As the special rapporteur admonished in his report to the Human Rights Council, “human rights might not survive the coming upheaval."

We are already seeing the fingerprint of climate change in critical law and governance problems well beyond the traditional bounds of “environmental protection.” In addition to the refugees fleeing coastal areas and Pacific Islands that may be uninhabitable within 11 years, recent research is also showing links between climate change and, for example, the wave of Central American migrants fleeing to the U.S., the entrenched Syrian civil war, and the rise of extremist organizations. While it is difficult to prove that climate change caused specific crises in a “but for” sense, the UN has recognized climate change as a “threat multiplier,” adopting the terminology and analysis of highly-regarded military and security experts that climate change tips volatile situations into violence or exacerbates already-unmanageable crises.

During my time at ABA ROLI, I observed the difficulty in promoting the rule of law and its institutions even in the best of circumstances, and today we are already far from the best of circumstances. As former ABA ROLI Director Elizabeth Andersen wrote last year, rule of law around the world is facing disturbing trends, including “threats to civil society, seemingly intractable conflict, and a populist (and popular) backlash.” In an increasingly hotter world, as the UN special rapporteur rightly points out, rule of law and rights challenges become much more dire. For this reason, I felt compelled to focus on protecting the climate.

This year, another series of unprecedented climate events are occurring, including the Earth’s hottest month since records began, Arctic wildfires releasing more carbon into the atmosphere than Belgium did in all of 2018, permafrost loss in the Arctic exceeding expectations by 70 years, the continued melting of Greenland’s ice sheet contributing a historic amount to sea level rise, and fires in the Amazon rainforest increasing 83% over last year and plunging São Paulo into darkness at 3pm. Nearly all of these and similar events are, in turn, releasing more carbon into the atmosphere, generating more warming, more extreme weather, and more destabilization of communities and societies around the world.

Despite knowing the dangers of global warming, virtually no government, large company, or other entity able to significantly reduce global greenhouse gas emissions is doing enough to mitigate those emissions and safeguard the planet’s habitability. Instead, many governments continue to subsidize fossil fuels, spending a total of $4.7 trillion in 2015 (6.3% of global GDP) and an estimated $5.2 trillion in 2017, according to an International Monetary Fund (IMF) report. This spending has continued despite a 2009 G20 commitment to reduce fossil fuel subsidies in the "medium term.” Simultaneously, those resistant to decarbonizing energy sources often cite the large cost involved in transitioning the world off of fossil fuels as reason to delay that transition. Yet a report by the International Institute for Sustainable Development recently found that fossil fuel subsidies dwarf the cost of decarbonization, calculating that just 10-30% of fossil fuel subsidies would pay for a global transition to clean energy — even assuming a lower amount in total fossil fuel subsidies than the IMF report. (To be fair, clean energy is growing significantly, but not quickly enough.) In addition, economic experts and key financial industry leaders such as the governor of the Bank of England warn that the longer we delay transitioning off fossil fuels, the more sudden and disruptive the eventual transition will be, potentially triggering another global financial crisis.

If governments and companies cannot be persuaded to decarbonize and enact science-based, climate-protective policies, then they must be compelled to do so based on their obligations to protect fundamental rights. A growing number of countries recognize citizens’ express environmental rights, and courts must require governments to act to protect those rights. Other countries, including the U.S., may not expressly recognize environmental rights, but do recognize fundamental rights such as those to life, liberty, and property. These recognized rights are left profoundly vulnerable if catastrophic climate change damages the planet's habitability. Therefore, courts should require governments to protect the climate as part of their obligations to protect fundamental rights. As Judge Aiken of the Oregon District Court wrote in her ruling allowing OCT’s Juliana case to proceed against the federal government:

I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. Just as marriage is the “foundation of the family,” a stable climate system is quite literally the foundation “of society, without which there would be neither civilization nor progress.”

Opponents of climate litigation believe that energy policy decisions generally lie outside the purview of courts and are solely within the discretion of the political process. They argue that fundamental rights do not protect humankind from continued carbon emissions, even as cities sink below the sea, new deserts appear, and whole regions become unlivable. This logic leads to the absurd result that we are legally powerless to defend our right to life against the carbon emissions destroying our ability to live. If the rule of law is able to promote justice, it must be able to prevent such catastrophic outcomes.

The scale of effort needed to combat the climate crisis has been likened to the worldwide mass mobilization of World War II. Recognition and protection of the legal right to a safe climate capable of supporting human life must play a role in that mobilization. Indeed, another UN special rapporteur recently reported to the General Assembly “the urgent need for action to ensure a safe climate for humanity . . . and the crucial role for human rights in catalysing action to address climate change.”

More generally, we should all contribute to the fight however we can. We should help implement the ABA House of Delegates’ recent resolution urging federal, state, local, and tribal governments, the U.S. Congress, lawyers, and others to take aggressive action to address the climate crisis. We should act individually and collectively:

  • calling on legislators and policymakers to expedite a just transition off fossil fuels and to promote science-based climate recovery policies; 
  • volunteering with lawyers, youth, and organizations engaged in work related to climate change; 
  • and combating the destructive anti-science, anti-facts trend among political leaders and key decisionmakers. 

Science, the scientific method, and the relentless pursuit of truth made humanity’s meteoric rise possible over the past two centuries; now, we require them to ensure our survival.

For my part, I will join my new colleagues at OCT and advocate for applying the rule of law to stop harmful government conduct that simultaneously threatens the lives of our children and the justice, economic opportunity, and human dignity ABA ROLI works tirelessly to promote. In over six years at ROLI, I have had the immense privilege of working with dedicated, inspiring, and highly expert co-workers, partners, and pro bono volunteers. As I say “goodbye for now,” I hope my future work will help them continue to succeed in theirs.

Jay Monteverde is ABA ROLI’s former Director for Global Environmental Programming. He is on Twitter at @jaymonteverde0 and can be reached at [email protected].

Disclaimer: The views and opinions expressed in this article are the author’s own and do not necessarily reflect the views of ABA ROLI.