By Bob McGahey
After years of fraught negotiations, we have a climate accord. Just getting 195 countries with different, sometimes conflicting, interests to agree was a miracle of sorts. The document breaks new ground by aiming to hold the average temperature rise below 2C, to 1.5C, and reaching carbon neutrality by the “second half of the century.” The road map for how to get there is less clear. The INDCs are not binding, relying upon peer pressure at periodic reviews to curtail carbon emissions even further than current pledges, which would take us down to 3.5C, still well beyond the threshold of climate catastrophe. The current pledges do not go into effect until 2020, although there will be an opportunity for revising upward in 2018, with the first review in 2023. This is not tough enough or fast enough.
In a recent post at Common Dreams, Jeremy Brecher, a labor historian, noted that the governments of the world accepted no accountability in Paris; rather, they only went on record with a stronger common goal. Because they, and to some degree the U.N., are accountable to the vested interests which put them in power, it is up to the people to stand up and force them to be “accountable to the world’s real owners,” the people. In “A Non-Violent Insurgency for Climate Protection” (http://fpif.org/wp-content/uploads/2013/12/A-Nonviolent-Insurgency-for-Climate-Protection-Foreign-Policy-In-Focus.pdf), Brecher argues that there is legal ground for the people to rise up in multiple acts of civil disobedience to force governments, who are trustees guarding the air, oceans, forests, and potable water, to abide by the laws that safeguard these critically endangered commons in a “global law-enforcing climate insurgency.” The foundation for this is called in the US the public trust doctrine, which is based upon the Justinian code of 535 A.D., naming certain areas as res communes, “common things” that are not held by the state; hence the beleaguered notion of the commons. As Brecher puts it eloquently, “The governments of the world may rule the world, but they don’t run the world—that is the common property of humanity.”
Fortunately, to defend that common property, an independent climate protection movement has emerged. Brecher dates the start of the movement to the mass International Day of Climate Action in 2009, the most widespread political action day in planetary history. This has grown in recent years into the Blockadia movement, expertly documented by Naomi Klein. Increasingly, these actions are designed as civil disobedience aimed at enforcing fundamental legal and constitutional principles that are being flouted by the authorities they are disobeying. By calling these abuses into question, they are performing their legal duty, planetary citizens mounting what legal scholar James Gray Pope calls a “constitutional insurgency.” This insurgency aims to transform the world order, which Brecher argues is more attainable than challenging individual nation-states, and has in fact happened more than once in our lifetimes. Crucially, Brecher notes that the current world order, which protects the global corporations, especially Big Fossils, is “illegitimate but mutable.”
As law-enforcing or constitutional insurgents, activists are invoking the necessity defense, which was unexpectedly successful in the case of Friend Jay O’Hara, when he and Ken Ward blocked a coal vessel at Brayton Point, MA with his lobster boat. Defendants who recently blocked an oil train in Washington state are mounting the same defense. We shall see what the court’s response will be. Even if the courts don’t accept their arguments, these actions can “redefine what climate action is all about.” If legal actions continue to fail, Brecher envisions civil society tribunals chaired by senior retired judges and other respected figures calling expert witnesses with publicly acknowledged credentials. It’s all about civil society moving into the black hole of accountability which the current world order lacks. We are part of that civil society, Friends, and, as EQAT has shown, carefully strategized and discerned actions can affect the mutable world order.
Since governments serve as trustees of the commons, environmental lawyers are working to utilize trust law to enforce the people’s rights to enjoying the benefits of these commons. It may seem far-fetched— one environmental lawyer calls these kinds of challenges “hail Mary passes” —but successful use of trust law could require fossil fuel companies to pay damages for the colossal waste committed against the public trust. Fair damages would pay most of what is required to transition to a zero-carbon economy and build the global Green Fund to help poor nations adapt to climate change.
Governments of the world need to be made accountable to the world’s real owners. Yes, Jeremy Brecher, according to the Justinian code. But nobody owns the world, as the indigenous peoples will tell us. Ultimately, the world is God’s, and the building climate insurgency is about the people rising up to return the Commons to Her. Or if you prefer, to Gaia, the evolutionary miracle which brought this perfectly-placed third rock to superabundant life. Earth stewardship in these critical times means joining the insurgency to defend Gaia, with whatever gifts we have.