Saturday, January 23, 2016


Trial by Necessity: a Big Win for the Delta 5

In my post of Jan 18, I wondered what the verdict would be in the Delta 5 case. Five defendants had blocked a train in 2014 carrying fracked gas, stripmined coal, and fracked Bakken oil from North Dakota. Well, the verdict is in, and the defendants were acquitted of “obstruction” and any financial losses accruing from their action. Four of them were convicted on the charge of trespassing, for which they had to pay fines, as well as court fees.

What is significant about this trial is that the judge, Anthony Howard, allowed a necessity defense to be argued for the first time in such a case (the trial of Jay Ohara resulted in an implicit honoring of this rationale for blocking a coal tanker in Massachusetts, but there were no legal arguments to this effect). However, when it was time to charge the jury, he explicitly told them not to consider this argument in their deliberations, because there was no precedent to do so. One juror said later that if he had allowed them to consider that line of defense, there would have been an outright acquittal.

Another juror thanked the defendants for the “education” they had received by listening to the witnesses for the defense. A defendant quipped, “Welcome to the movement.” Jurors and defendants hugged at the conclusion of the proceedings. It was a heartwarming victory, as well as a toe in the door opening to the necessity defense. Setting that precedent, which Judge Howard, though sympathetic, was reluctant to do, would link the climate movement and the insurgents who are its leading wave directly with the Justinian Code on res communes. That would be a huge step forward for enforcing the Paris accord and climate realism in constitutional governments. And with James Hansen now directly advising China, all of the major players in the unfolding endgame of the climate drama would be involved.

(Hansen told me via e-mail several years ago that he had given up on our wishy-washy government to focus upon advising China, a more direct process than having to make continual end-runs around a reactionary Republican Congress. He was responding to my post on the philosopher-king cutting the Gordian climate knot.)

Building on this victory, is calling for a global wave of civil disobedience aimed at keeping fossil fuels in the ground this May in a campaign called “Break Free.” In the first four days of the appeal, 12,000 people signed up worldwide, including this blogger. Read about the campaign, and please discern what your part may be in helping us Break Free, fulfilling Obama's 2008 campaign pledge, something we all now know he could have never accomplished alone - or with virtually any Congress. Look around you - the fossil fools are everywhere, but you need to choose your targets strategically and wisely.  The time is ripe. Pluck the berry of opportunity while ye can. Let's talk about this!

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Monday, January 18, 2016


A Global Climate Insurgency?

After years of fraught negotiations, we have a climate accord. Just getting 195 countries with different, often 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 (Intended Nationally Determined Contributions – whew!) 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, though there will be an opportunity for revising upward with a review process every five years. This is not tough enough, fast enough.

In a post this week at Common Dreams, Jeremy Brecher, a labor historian, notes that the governments of the world accepted no accountability in Paris, only going on record with a stronger common goal. Since they, and to some degree the U.N. as well, 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 more detailed piece, “A Non-Violent Insurgency for Climate Protection,” 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 and forests, 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, which Brecher dates 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 now invoking the necessity defence, which was unexpectedly successful in the case of Friend Jay O'Hara, when he and Ken Ward blocked a coal vessel at Brayton Point, Mass with his lobster boat (see lead photo). Defendants who blocked an oil train in 2014 in Washington state are mounting the same defense. We shall see what the court's response is. 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. I am convinced that civil society, in carefully strategized actions, their trials managed by expert environmental lawyers, can affect the misguided but 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.

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