Supreme Court deals setback for Environmental Activists and Refugees
On September 21, 2009,
the Second Circuit made an important decision on a case known as
Connecticut vs American Electric Power.
Without going into too much detail, this was a case where several groups like the Audubon society were trying to stop coal plant emissions because it was harming the value of their land trusts. The lower court ruled as other courts have, that Climate Change was part of the political realm, not the courts.
However, the appellate court overturned this decision on the grounds that the Energy company were causing a public nuisance, and nuisance cases have been heard by courts for decades.
“Nowhere in their complaints do plaintiffs ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches. Instead, they seek to limit emissions from six domestic coal-fired electricity plants on the ground that such emissions constitute a public nuisance that they allege has caused, is causing and will continue to cause them injury.”
Unfortunately, as of April 20th, 2011, it seems that even the ‘liberal’ judges on the Supreme court are going to side with the Utilities :
Justice Elena Kagan also questioned the scope of the case, refuting Underwood’s argument that public nuisance pollution suit was like any other pollution suit. “All those other pollution suits that you’ve been talking about are much more localized affairs. One factory emitting discharge into one stream—they don’t involve these kinds of national/international policy issues … I mean, there’s a huge gap, a chasm between the precedents you have and this case, isn’t there?”
Justice Ruth Ginsburg, meanwhile, questioned the court’s jurisdiction in setting standards for emissions. “Asking a court to set standards for emissions sounds like the kind of thing that EPA does,” she said. “The relief you’re seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super-EPA.”
This case has been watched particularly closely by lawyers representing groups of people who are likely to become Environmental Refugees.
Even though there are hundreds to thousands of people currently being displaced by Climate Change, they do not have a defined status as a group, hence they are not really ‘refugees.’
According to the definition by UN High Commissioner on Refugees, (UNHCR) a Refugee is someone either inside or outside their national borders fleeing persecution due to their affiliation with their social group – for instance ethic, religious, political etc.
But a person whose island is swallowed up by rising sea level has no rights under Refugee law, in fact, they are considered ‘Migrants’ meaning they are ‘voluntarily’ leaving their country.
Professors Andy Pittman, Pr. Jane McAdam and Anna Samson of the University of New South Wales explain this issue in this video. (an hour video)
Right now there are already staggering numbers of Refugees that need help.
10 million traditional refugees,
13 million refugees displaced within their own borders,
6 million refugees who were considered ‘stateless’
1 million ‘people of concern’
Add to that the costs associated with Climate Change.
The U.N. Development Program estimated that industrialized nations must provide $86 billion a year by 2015 for people most vulnerable to catastrophic floods, droughts and other disasters that scientists fear will accompany warming.
At some point, the Governments of the world are going to have to get involved.
What is the hold up for giving people displaced by Climate Change ‘refugee’ status?
It is simple. If you establish that people displaced by climate change are refugees, then the governments of the world are compelled to aid them and/or to stop them from becoming refugees.
Right now, it is a big leap to say that a wave washing over your island is a form of persecution, but the practices of the Industrialized countries through pollution, are in fact, the source of this persecution.
If this was established as international law, then Governments would have to cease and desist from engaging in this persecution, namely by no longer using contributing to the problem of Greenhouse gases.
This is a place where fossil fuel companies like Coal and Big Oil do not want to go.
If Environmental Refugees were given status, then that type of tax subsidy could make the US a participant in state sponsored persecution
The other main issue is cost. Governments around the world are dealing with a recession, so who is willing to step up and pay for humanitarian aid such as water purification, food, and the most costly, relocation?
And where will the people be relocated to? Immigration is already a touchy subject in this country as well as many other Industrialized nations.
My argument is one that is based on the Civil Rights movement. Industrialized nations are causing the problem, therefore they should pay the costs and lead the way to reform.
But that is just one idea.
There is a pending case centered on Environmental Refugees off of the coast of Alaska. This is the Kivalina Islanders lawsuit – which was reported in this article in the Atlantic.
This legal argument in this case on behalf of the U.S. Citizens living on Kivalina, is that much like the Tobacco companies conspired to hide documents proving they knew Tobacco was bad for a person’s health, the Fossil Fuel industries and energy companies also have conspired to deny climate change even though the have evidence otherwise.
In September 2009, I had the opportunity to be part of a panel on Environmental Refugees at an Environmental Justice conference at the University of Oregon Law School.
While I was there, I had the privilege of meeting
Brent Newell of the Center on Race, Poverty, and the Environment, who is a legal counsel for the Kivalina people – he had been hoping the Nuisance case brought by Connecticut vs American Electric would be the turning of the tide vs. Coal Companies.
In addition to meeting the legal counsel for the Kivalina, I also got to meet Professor Maxine Burkett, of the University of Hawaii Law school.
I would say that she and I had the most similar view on this issue.
Her view on a remedy for the Environmental Refugees was to address this issue based on the model of reparations.
This model has 3 basic requirements.
1) An apology from the offending party for the action or harm.
2) Monetary compensation for losses caused by the action or harm.
3) A guarantee that this action or harm will not happen again.
This last requirement is the essential point.
If, for instance, you were to win lawsuits against polluters, then you would probably only get monetary compensation, but the pollution would probably still continue in other parts of the world.
With the reparations model, the pollution, which is the harmful action, would need to cease. And since pollution is worldwide, this would be the end of the fossil fuel industry as we know it.
To date, this solution remains the best hope to reverse the discrimination and persecution against Environmental refugees by the fossil fuel industry, since our Supreme Court doesn’t seem to have the guts to do the right thing.