Activists in Spokane, Washington, filed a lawsuit against the United States government alleging the government is violating the “constitutional right” of Spokane residents to a “livable climate” by prohibiting bans against the transportation of fossil fuels by rail.
The Community Environmental Legal Defense Fund calls the lawsuit a “first-of-its-kind case directly challenging federal preemption as an infringement of constitutional rights.”
Dr. Gunnar Holmquist, one of the plaintiffs in the lawsuit, stated, “This lawsuit will inevitably be the first of many which seek to begin to align state and federal laws with the realities of global warming—liberating communities to begin to take the difficult steps necessary for our continued survival on this planet.”
Multiple plaintiffs in the case are activists, who were arrested in August and September 2016, when they occupied a railway line. They were charged with trespassing on BNSF Railway property for their direct action intended to call attention to the threat of fossil fuel trains, sometimes referred to as “bomb trains.”
On June 10, 2016, according to the complaint [PDF], Holmquist proposed a citizens’ initiative to the clerk of the city of Spokane to ban “transportation of coal or crude oil by rail.” The initiative maintained such trains violated the “right of the people of Spokane to a healthy climate.”
That month the city council took no action. Holmquist submitted a new version of the initiative the following month and learned the city council would not place it on the ballot because officials were concerned about “federal preemption.”
The Spokane City Council passed a resolution and requested the Spokane County auditor hold a special election on November 8 for the ballot proposition. In spite of this support from elected city officials, the hearing examiner for the city concluded, if adopted, federal law would supersede the initiative.
“It is well established that a state or local law that permits a non-federal entity to restrict or prohibit the operations of a rail carrier is preempted,” the hearing examiner asserted. “The proposed ban on the transport of oil and coal by rail is therefore outside the scope of the initiative power.”
The lawsuit additionally argues Spokane residents have the “right of local community self-government” and that right “may be exercised collectively by the residents of the city of Spokane to make binding law.” It adds “self-government is essential to the individual liberties in our society, and is deeply rooted in our nation’s history and tradition.”
CELDF routinely files lawsuits on behalf of activists or residents of communities to defend or assert their right to make environmental regulations. But recently, attorneys for CELDF were sanctioned by a federal court in Pennsylvania for essentially challenging Pennsylvania General Energy’s development of a fracking wastewater injection well.
Judge Susan Baxter’s ruling requires CELDF executive director Thomas Linzey and CELDF attorney Elizabeth Dunne to pay $52,000 to Pennsylvania General Energy. They also may face further punishment, including suspension of their legal licenses or disbarment.
Nonetheless, despite judges embracing the notion that residents protecting the climate violates corporations’ constitutional rights, there are federal courts that have come down on the side of the environment.
The lawsuit notes Judge Ann Aiken, a federal judge in Eugene, Oregon, found citizens have a fundamental right to a “climate system capable of sustaining human life.” She added, “It is quite literally the foundation ‘of society, without which there would be neither civilization nor progress.'”
“This court simply holds that where a complaint alleges governmental action is affirmatively and substantially damaging the climate system in a way that will cause human deaths, shorten human lifespans, result in widespread damage to property, threaten human food sources, and dramatically alter the planet’s ecosystem, it states a claim for a due process violation.”
“According to U.S. government data, from 1975 to 2012, an average of 25 crude oil spills from tank cars occurred on the rails each year. In 2014, that number rose to 141,” Chicago Magazine reported in 2016.
Between 2013-2016, there were at least 17 instances where trains carrying fossil fuels derailed and generated news coverage.
“In eight of them, the tank cars blew, sending fireballs hundreds of feet into the air, filling the sky with black mushroom clouds. In the most severe cases, the flames produced are so hot that firefighters almost inevitably choose to let them burn out, which can take days, rather than extinguish them. (The Wall Street Journal calculated that a single tank car of sweet crude carries the energy equivalent of two million sticks of dynamite.)”
“Even when there are no explosions, the spills can wreak havoc on the environment: five of the 17 accidents resulted in the pollution of major waterways, affecting thousands of people across the continent,” the magazine added.