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A New Wave of Climate Insurgents Defines Itself as Law-Enforcers
In the United States there will be actions in California, the Northwest, the Mountain West, the Midwest, Washington, D.C., and the Northeast. They will include support for a moratorium on the auction of public land for fossil fuel development, mass trespass at fracking sites, land and flotilla blockades of refineries, actions at the facilities of pipeline companies, and blockades of trains carrying fracked oil. In each case the partners include not only national and international environmental organizations but dozens of community, indigenous, climate justice, labor, religious, citizen action and other groups that have long been campaigning locally against these targets.
Flipping the script
Break Free From Fossil Fuels participants will define themselves to the movement, the public and the courts not as criminals but as law-enforcers trying to enforce legal rights and halt governments and corporations from committing the greatest crime in human history.
Fundamental principles embodied in the laws and constitutions of countries around the world provide a strong basis for these claims. Basic human and constitutional rights include the unalienable rights to life, liberty and property -- including the property that belongs not just to us but to future generations of humanity. And pursuant to the public trust doctrine governments are the trustees of the vital natural resources on which human well-being depends; they have a "fiduciary duty" to manage them for the benefit of all present and future generations. Governments have no right to authorize the destruction of those resources today to the detriment of future generations and constitutional rights to life, liberty and property. These legal rights will help provide the frame for the public messaging and legal strategy of climate-protecting civil disobedience surrounding Break Free From Fossil Fuels.
Use of constitutional law and the public trust doctrine for climate protection has been pioneered by young people, supported by Our Children's Trust, who have brought lawsuits and/or rulemaking petitions in every U.S. state and against the federal government, as well as in several other countries around the world. Their aim is to require governments to act on their public trust duty to protect the climate, as well as the fundamental constitutional rights of present and future generations.
"The Federal government has been making decisions in the best interest of multinational corporations and their profits, but not in the best interest of my generation and those to come," said Earth Guardians youth director Xiuhtezcatl Martinez, one of the lead youth plaintiffs in the landmark federal climate lawsuit now pending in the U.S. District Court for the District of Oregon. "Instead of changing their business model to meet the scientific reality of climate change, these companies are demanding we adapt to an uninhabitable world that supports their profits. When you compare the two, I think it's clear that our right to clean air and a healthy atmosphere is more important than their 'need' to make money off destroying our future."
Xiuhtezcatl Martinez in Paris for the 2015 UN climate talks. (Facebook / Earth Guardians)
In an astonishing turn of events last November, the American Fuel & Petrochemical Manufacturers, the American Petroleum Institute, and the National Association of Manufacturers -- representing nearly the entire fossil fuel industry -- filed a motion to "intervene" and join forces with the government against the youth in the Federal Constitutional and Public Trust lawsuit of Our Children's Trust. They argued that, "If plaintiffs succeed in this court ordering the elimination or massive reduction of U.S. conventional fuel consumption and manufacturing processes that emit greenhouse gases beyond existing federal and other regulations, the members of each of the proposed intervener-defendants will be harmed."
According to Our Children's Trust executive director and lead attorney for the youth Julia Olson, "The fossil fuel industry would not want to be in court unless it understood the significance of our case. This litigation is a momentous threat to fossil fuel companies. They are determined to join the federal government to defeat the constitutional claims asserted by these youth plaintiffs. The fossil fuel industry and the federal government lining up against 21 young citizens -- that shows you what is at stake here."
On January 15, Magistrate Judge Thomas Coffin of the Federal District Court in Oregon accepted the fossil fuel and manufacturing industries' move to intervene to oppose the lawsuit.
Claims that government actions are illegal and unconstitutional have played an important role in empowering social movements throughout history. They strengthen participants by lending a sense of clarity that they are not promoting personal opinions by criminal means, but rather performing a public duty. And they strengthen a movement's appeal to the broader society by presenting action not as wanton law-breaking, but as an effort to rectify actions of governments and institutions that are themselves in violation of the law.
For the civil rights movement, the U.S. Constitution's guarantee of equal rights meant that those engaged in sit-ins and freedom rides were not criminals, but rather upholders of constitutional law -- even if Southern sheriffs threw them in jail. For the activists of Solidarity, the nonviolent revolution that overthrew Communism in Poland was not criminal sedition, but an effort to implement the international human and labor rights laws ratified by their own government.
Constitutional and public trust arguments make it possible for the climate protection movement to turn the tables on the governments that purport to represent the world's people and to have the authority to rule the world. They stand for the proposition that governments do not have the right to destroy the climate -- and that the people have the right to stop them when they do so. Governments have no more right to authorize the emission of greenhouse gases that destroy the climate than the trust officers of a bank have to loot the monetary assets placed under their care. The people of the world have a right to our common natural resources. And we have a right, if necessary, to protect our common assets against those who would destroy them.
The constitutional duty of governments to protect the public trust, and the right of the people to life, liberty and property, can play much the same role in the climate movement that the U.S. Constitution's right to equality played for the civil rights movement and the Polish government's legal commitment to human and labor rights played for Solidarity. Those who perpetrate climate change, and those who allow them to do so, should not be able to claim that the law is on their side. Those who blockade coal-fired power plants or sit down at the White House to protest fossil fuel pipelines can -- and should -- insist that they are simply exercising their fundamental constitutional rights to life, liberty and property, as well as their responsibility to protect the atmospheric commons they own along with all of present and future humankind. Climate protesters can proudly proclaim that they are actually protecting constitutional public trust rights for all, upholding the law, not violating it.
It has begun
When protesters block fuel trains or occupy government buildings, normally the police are called in, and the protesters are arrested and tried as law breakers. But a trickle of recent climate cases has begun to erode the expectation that the law supports the right of property owners to use their property to destroy the climate.
On Earth Day 2013, Alec Johnson (a.k.a. "Climate Hawk") locked himself to a construction excavator in Tushka, Oklahoma, as part of the Great Plains Tar Sands Resistance campaign to stop the Keystone XL pipeline. Johnson explicitly based his defense on the public trust doctrine: "When it comes to our commons, to our public property, we the people have rights in a public trust." The public trust doctrine, he continued, "assures us that we have rights when it comes to how our public commons are administered by any trustees placed in charge of it." We the people are "armed" by such legal doctrine. We now "demand our environmental institutions and agencies recognize their responsibilities as trustees and exercise their fiduciary responsibility to act with 'the highest duty of care,' to ensure the sustained resource abundance necessary for society's endurance."
In a statement he prepared for the jury, Alec Johnson argued that his blockade of Keystone XL pipeline construction was necessary because the pipeline threatens our atmospheric public trust, and state and national governments are failing to protect us against that threat. He proclaimed on the basis of the public trust principle, "I wasn't breaking the law that day -- I was enforcing it." Although Johnson could have been sentenced to up to two years in the Atoka County jail, he received no jail time and a fine of just over $1,000.
In 2013, Jay O'Hara and Ken Ward used a small fishing boat named Henry David T to block a ship from unloading 40,000 tons of coal at the Brayton Point, Massachusetts power plant. Prosecutors charged them with disturbing the peace, conspiracy, failure to act to avoid a collision, and negligent operation of a motor vehicle. O'Hara and Ward argued that the imminent threat of global climate change left them no choice but to act as they did. The day the trial was set to begin, the Bristol County District Attorney went out to the steps of the courthouse and announced that he was reducing the charge to a modest fine, which would help defray municipal costs. Then he issued a statement in support of O'Hara and Ward's protest: "Climate change is one of the gravest crises our planet has ever faced. In my humble opinion the political leadership on this issue has been gravely lacking." He thereupon met with the defendants and told them he would join them at the upcoming People's Climate March.
Rising Tide Seattle activists have blockaded an oil train in Everett. (Facebook / Rising Tide Seattle)
On September 2, 2014, five activists blockaded a train used to ship Bakken oil in a BNSF Delta rail yard in Everett, Washington. They included a business climate consultant, a teacher's assistant, a coffee house owner, a retired music teacher, and the owner of a small carpentry and painting business. In their court filings, the "Delta 5" argued that "to seriously address the climate crisis, we need to be shutting down our fossil fuel infrastructure and keeping that oil in the ground." On that basis they maintained that their blockade was "morally -- and legally -- justifiable given the imperatives of the climate crisis." The risks of global warming are an emergency, and require urgent, rapid reductions of atmospheric CO2 emissions if we are to maintain a sustainable climate. The blockaders asked that their actions be viewed, "not as a crime, but a as reasonable act of conscience, necessitated by the extreme nature of the emergency and by the fact that the government itself is in violation of the law." Abby Brockway, a housepainter and Presbyterian elder, presented an additional defense based on the threat the oil trains presented to railroad workers and the communities they went through.
Initially the judge refused to admit a necessity defense. But shortly before the trial he reversed himself. As a result, for the first time in U.S. history a judge allowed a jury to hear testimony that climate protesters should not be found guilty of breaking the law because their actions were necessary to prevent a far greater harm - destruction of the Earth's climate.
After testimony was completed, however, the judge instructed the jury not to consider the necessity defense, primarily on the grounds that they had not shown that all legal avenues had been exhausted. But the jury had already heard why the Delta 5 did what they did - and the expert testimony on the threat presented by climate change and oil trains. The jury acquitted them on the major charge of obstructing a train and found them guilty only of trespass. At the end of the trial three of the jurors met with the defendants in the hallway, hugged them and agreed to join them for an upcoming climate lobby day. Were it not for the judge's firm instructions, they said they would have voted to acquit. The Delta 5 are appealing the decision.
A kind of "municipal climate disobedience" is also emerging. In Deerfield, Massachusetts, this February, the Texas-based Kinder Morgan company asked the Massachusetts Department of Public Utilities, or DPU, to force the more than 400 property owners along the route of its proposed Kinder Morgan natural gas pipeline to allow company surveyors on their land. In reply, the town of Deerfield wrote the DPU that its Board of Health has forbidden all activities of Kinder Morgan in the town. The health board had said that "a corporation convicted of felonies resulting in the tragic deaths of five people presents an unreasonable risk to the health and lives of residents of Deerfield if such [a] felon were to be allowed to build a massive fracked gas pipeline through the town."
The Select Board of the town warned that anyone entering onto private properties without permission from the property owners for activities related to the proposed natural gas pipeline will be arrested for trespassing - even if they have an order from the DPU. A lawyer representing the town said Deerfield is "prepared to supersede any state authority and have police officers arrest anyone who enters onto private property as part of the pipeline project." Kinder Morgan claims the federal Pipeline Safety Act preempts any state's authority to regulate pipeline safety and that certain state laws trump the town's orders.
While nobody should commit civil disobedience in the expectation that they will be acquitted on constitutional or public trust grounds, these cases show that we can expect a growing proportion of our neighbors and fellow citizens - including some who serve as judges and juries - to recognize that climate change must be halted by all means necessary and that our actions hasten that result.
A climate insurgency?
Break Free From Fossil Fuels may be the harbinger for a global nonviolent climate insurgency. It is globally coordinated, with common principles, strategy, planning and messaging. It is utilizing nonviolent direct action not only as an individual moral witness, but also to express and mobilize the power of the people on which all government ultimately depends. It presents climate protection not only as a moral but as a legal right and duty, necessary to protect the Constitution and the public trust for ourselves and our posterity. It represents an insurgency because it denies the right of the existing powers and principalities - be they corporate or governmental - to use the authority of law to justify their destruction of the earth's climate.
Rip-Off Tax Treaties 'Making the World More Unequal'
These treaties dictate how much, and even if countries can tax multinational companies, "have no place in the 21st century," ActionAid declares in its report.
As the Mistreated (pdf) report explains, "Tax revenue is one of the most important, sustainable and predictable sources of public finance there is. It is a crucial part of the journey towards a world free from poverty--funding lasting improvements in public services such as health and education." In particular, the group points out, many poor countries are asking for public funds to be put toward "the realization of women and girls' human rights."
Yet thanks to what Mwambwa calls the "broken tax treaty system," global corporations "pay little or no tax in poor countries."
In turn, he said, "Women and children in poverty pay the price when crumbling public services like schools and hospitals are starved of possible funding."
Indeed, after examining more than 500 binding tax treaties that low- and lower-middle-income countries in sub-Saharan Africa and eastern and southern Asia signed with other countries from 1970 until 2014, the International Development Organization concluded that many such pacts "are ensuring that money flows untaxed from poor to rich countries, making the world more unequal and exacerbating poverty."
ActionAid identifies the UK and Italy as the countries that have entered into the highest number of "very restrictive" tax treaties with African and Asian countries since the 1970s, followed by Germany. The organization notes that China, Tunisia, and Mauritius also have a rapidly growing number of similar treaties with some of the world's poorest countries.
Generally speaking, tax treaties that lower-income countries have signed with members of what ActionAid calls "the [Organization for Economic Cooperation and Development, or OECD] club of rich countries" take away more taxing rights than those with other countries. "Worryingly, the deals struck with OECD countries are getting worse," the group says.
Meanwhile, Bangladesh has given up the most power to tax multinational companies. According to ActionAid, a single clause restricting the country's ability to tax dividends--money paid by companies to overseas shareholders--costs Bangladesh around US$85 million annually.
"This is a country where 66 million people live in extreme poverty--less than US$1.90 a day," the group points out.
The report comes as nations grapple individually and as a bloc with how to close corporate tax loopholes.
In January, Google agreed to a deal with British tax authorities to pay PS130 million (US$143.5 million) in back taxes and bear a greater tax burden in future, after coming under fire for its tax avoidance practices. On Wednesday, the UK Parliament's public spending watchdog criticized the settlement as "disproportionately small."
Indeed, as ActionAid policy advisor Anders Dahlbeck told the Independent last month, "The row over tax dodging by big companies like Google shows how strongly the British public feels that multinationals aren't paying their fair share." But as Mistreated clearly illustrates, "this is just part of a far larger global problem."
Late last month, the 31 OECD members signed an agreement to share information about multinationals' profits and taxation, a move "aimed at stopping firms from using complicated loopholes or moving money across borders to minimize or avoid paying corporate tax," Agence France-Presse reported at the time.
And just this week, it was reported that developing nations will join that effort, under a proposal that would open up the OECD's Committee on Fiscal Affairs to new, associate members that agree to implement certain tax reforms.
The news brought mixed reactions from development groups who said it was too little, too late. "Inclusion after the fact is a poor substitute for a voice in how the standards are designed," said Oriana Suarez of the Latin American Network on Debt, Development, and Rights. "Developing countries now being invited...did not have a say while the rules were being set."
"The OECD is certainly one part of the global fight against tax evasion and tax avoidance, but it's not well-positioned to be the sole standard bearer for the globe," added Porter McConnell of the Washington, D.C.-based Financial Transparency Coalition. "Having its members speak on behalf of the rest of the world's countries is patronizing, and it's ultimately ineffective."
The Corporate-Friendly Trade Deals Threatening Ordinary People in 2016
"If we continue this work and build our movement we will build a new model of trade that puts the interests of communities and the environment before the interests of multinational corporations," Solomon wrote this month.
"Our short-term work is to stop harmful trade agreements," she said. "Our long-term work is to continue to build our movement so strong and fierce that it becomes unthinkable for governments to allow trade rules to undermine environmental and public interest policies because the backlash would be too severe."
Here are the deals you need to know to be part of the fight in the coming year:
Trans-Pacific Partnership (TPP) -- U.S. and 11 Pacific Rim countries
It was a "great day for corporate America" when the U.S. Senate passed Fast Track, or Trade Promotion Authority (TPA), in June, effectively surrendering legislators' ability to fully debate or even amend trade agreements like the TPP that have been negotiated entirely in secret. And when the text of the deal was finally released this fall, it confirmed the worst fears of environmentalists, public health advocates, and digital rights activists: the TPP, they said, was "worse than anything we could've imagined."
Thanks to Fast Track, President Barack Obama will be able to unilaterally sign the TPP for the U.S. after February 4, 2016. But it's not a done deal yet.
As Electronic Frontier Foundation's Maira Sutton explained earlier this month:
Both congressional houses must ratify the agreement in the form of approving "implementing legislation" that the White House will submit to lawmakers. This submission will happen after the President's signature, likely sometime in April or May. Once that happens, the House has 60 days from the bill's introduction to hold a vote on it and the Senate gets another 30 days, so 90 days in total, to approve or reject it. Since this second timeline only begins when the White House decides that they're ready for it, it all rests on whether the executive branch believes that it has the votes to get it through both houses. That's why it's critical that we call on our lawmakers to come out against this agreement: because that's how we can stop it.
"If we want to ensure that laws don't just uphold powerful private interests, but are designed and implemented with the public's best interests in mind," Sutton wrote, "then we must stop the TPP--for the sake of the Internet, our rights, and our future."
And the 2016 elections could prove helpful to those who oppose the corporate-friendly pact. The Japan Times reported Thursday that the pact "looks increasingly unlikely to be implemented before U.S. President Barack Obama's tenure ends due to opposition among leading presidential candidates and some industries."
TransAtlantic Trade and Investment Partnership (TTIP) -- U.S. and European Union
October saw hundreds of thousands of Europeans pour into the streets of Brussels to voice their opposition to the TTIP, which would cover more than 40 percent of global GDP. And push back against the so-called trade deal, which would have negative implications for everything from human rights and global climate goals to democracy and food safety, goes much deeper than that. As of October, more than three million people had signed a petition demanding an end to the TTIP negotiations--showing, as Global Justice Now director Nick Dearden said, "that the EU does not have the public mandate to continue this deal."
Indeed, there appears to be brewing discontent across the continent, with the president of the German Bundestag, or parliament, in late-October threatening to vote against the TTIP due to its lack of transparency and democratic legitimacy. That statement came on the heels of remarks made by a French trade minister in September, who said "France is considering all options including an outright termination of negotiations" due to TTIP talks appearing to favor American interests.
As American Prospect co-founder and editor Robert Kuttner posited in an op-ed earlier this year, both the TTIP and TPP could be "on the verge of collapse from their own contradictory goals and incoherent logic."
Trade in Services Agreement (TISA) -- 32 countries in Europe; 7 in Asia; 5 in North America (including U.S.); 3 in South America; 2 in Oceania; and 1 in Africa
TISA may be the least well-known of the so-called Big Three "strategic neoliberal trade deals being advanced by the Obama administration," as WikiLeaks puts it--but its dangers loom just as large.
Leaks in 2015 exposed how the pact "favors privatization over public services, limits governmental action on issues ranging from safety to the environment using trade as a smokescreen to limit citizen rights," Larry Cohen, president of Communications Workers of America, said in June. Our World is Not For Sale, a group that has been working against TISA since 2013, described the deal in July as "a developed countries' corporate wish lists for services which seeks to bypass resistance from the global South to this agenda inside the WTO, and to secure an agreement on services without confronting the continued inequities on agriculture, intellectual property, cotton subsidies, and many other issues."
In 2016, we can only hope that people power will pressure more countries to follow the lead of Uruguay, which in September decided to end its involvement in TISA negotiations. In doing so, Friends of the Earth activists Viviana Barreto and Sam Cossar-Gilbert wrote at Common Dreams, "Uruguay has created a blueprint of how to beat these corporate-driven agreements. A strong coalition of trade unions, environmentalists and farmers working together on an effective public campaign were able to take on the interests of the world's biggest companies and win."
Comprehensive Economic and Trade Agreement (CETA) -- Canada and Europe
"What's exciting about CETA," Council of Canadians trade campaigner Sujata Dey wrote earlier this month, "is that Europeans actually have the power to defeat it."
As Common Dreams reported in October, the Canada-EU deal would create "a parallel legal system for corporations" that could make "regulations in sensitive public service sectors such as education, water, health, social welfare, and pensions prone to all kinds of investor attacks."
"What is at stake in trade agreements such as TTIP and CETA is our right to vital services, and more, it is about our ability to steer services of all kinds to the benefit of society at large," the Brussels-based Corporate Europe Observatory declared at the time. "If left to their own course, trade negotiations will eventually make it impossible to implement decisions for the common good."
According to Council of Canadians, it is expected that CETA will go before the European Parliament for ratification votes either in late 2016 or early 2017. Prime Minister Justin Trudeau has already instructed trade minister Chrystia Freeland "to implement" CETA.
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