Devastating.” “Hamstrings …” “… a major blow …” “destructive …” a cataclysm …”
And more.
Those are a few of the early terms used by proponents of greenhouse gas emission regulation to describe the U.S. Supreme Court’s June 30 decision in the most significant environmental case of its session … and perhaps since the Court’s ruling in 2007 finding carbon dioxide a public health pollutant subject to regulation under the Clean Air Act.
In its final decision of this consequential term, the court’s now-familiar six-to-three conservative majority ruled EPA had gone beyond its legal authority by attempting to regulate greenhouse gases through the Obama-era Clean Power Plan. The decision was written by Chief Justice John Roberts, with the three progressive justices dissenting.
But the decision did leave the door slightly ajar to Congress’s outright authorization of such regulations somewhere down the highly uncertain road ahead. Critics of the court’s ruling in West Virginia v. EPA found that option highly unlikely politically and, in any event, nothing to celebrate.
Private sector, market forces, big business left to take climate leadership roles? (to be determined)
“Devastating” is the term the Biden White House used in its initial take on the decision.
Carol Browner, EPA Administrator during the Clinton administration, not surprisingly, used the same term in an interview with CNN, which labeled the ruling a “big blow” to Biden administration climate change ambitions. The decision is expected by many to have implications extending far beyond EPA and climate, affecting rule making by diverse Executive branch agencies (the “administrative state”) on a wide swath of issues.
Upcoming posts coming soon at this site will provide detailed coverage on the court’s ruling; on reactions to the ruling from legal and policy experts; and on what options the federal government, and perhaps some states, might next consider in attempting to reduce greenhouse gas pollutant emissions and atmospheric concentrations.
Forecast ahead: Lots of uncertainty, lots more case-by-case litigation, further doubts over U.S. global role, let alone “leadership,” on climate change.
A series of legal rights has emerged in recent years as if from nothing, and each has become thickened with all sorts of rules and exceptions.
It used to be that the only employment law was, in practice, the law relating to strikes. Half a century later, we have a generalised system of individual employment law.
The main book collecting employment law regulations runs to a tightly-printed 3,000 pages and weighs over two kilogrammes.
Extinction
We did not use to have any information law: now we have the Data Protection Act, the Freedom of Information Act, a specialist enforcement body and an appeals tribunal.
Immigration law has grown from a tiny area, the reserve of a few dozen specialists to provisions so complicated that even the judges complain.
“Immigration law is a total nightmare,” said immigration judge Nicholas Easterman in 2017. “I don’t suppose the judges know any more about it than the appellants who come before them.”
But while these areas have grown, environmental law has seen no similar expansion.
In Britain there is still no system of environmental law despite half a century of growing public awareness of environmental degradations, of species extinction and the poisoning of the rivers and seas.
Regulating
We have hints of it: in the criminal law for example, when lawyers defend protesters.
When central or local government makes a decision which has an environmental impact that decision can be judicially reviewed in the High Court.
The First-Tier Tribunal contains an Environmental Chamber which hears appeals by business after they have been fined under regulations dealing with eco-design, single user carrier bags, waste, etc.
But these hints fall short of constituting a proper system of environmental justice, in which the people who pollute and poison our world can, for example, have their property removed from them.
Often the problem is said to be one of “standing”. In other words, that unless and until trees and mountains can sue in their own name, then no-one will be able to restrict the decisions made by government in planning and regulating industry.
Interference
And it is true that this absence hampers lawyers: destroy a creature’s habitat and the harm to them will aways be greater than the second-hand suffering done to the people who care for nature.
Yet, standing is only a part of the problem. Over the past 25 years, the group of charities who have been empowered to bring judicial review cases has widened. But it remains true that most such claims are brought, fought hard, and lost.
Until we can sue and expropriate the worst of the polluters, it is hard to see how business will feel any pressure to change.
The answer is not a cadre of judges willing to be bolder in their application of judicial review. For that is a remedy against government.
And most damage to the environment is done by businesses rather than the state, and if a company pollutes the air or the water or contributes to global warming, the citizen has almost no meaningful redress against them.
More than a century ago, Victorian judges developed the idea of a private nuisance, a harm which happens when one person causes an unreasonable interference to the use and enjoyment of a person’s property.
Neoliberalism
Yet a claim in nuisance cannot only be brough by a landowner. Imagine, the owner of a commercial forest which has been damaged by acid rain. Who would the owner sue?
The time between an act of environmental destruction and its consequences may be protracted. The distance between the release of a pollutant and the harm it causes may be hundreds of miles. What, if the polluter is outside the United Kingdom? Nuisance assumes that pollution is incapable of crossing borders.
After fifty years of growing public consciousness we should have – but no court has actually recognised – a system of economic wrongs – “torts” – done against nature, and a series of remedies including both compensation and confiscation.
Only then would there be the intellectual infrastructure so that claims brought in the name of trees or mountains would have effect. But that would only be the first step. And its creation now would be too late.
The irony is that for the last forty years, we have lived through a political moment – “neoliberalism” – which has been open to the creation of new laws.
Right
Under neoliberalism, the whole of existence is understood as an opportunity for the creation of markets – in water, in housing, in utilities – which require rules and people to enforce them.
No mechanism has been accepted for changing how business behave, except through market creation, and business regulation and reward. The vast majority of people are left out of these dynamics.
Think of the European Union Emissions Trading System (EEUTS), the main policy mechanism of the EU for resisting climate change which was set up in 2005 to use market solutions to prevent global warming.
Although this is “European law”, UK politicians enthusiastically supported these proposals. On Britain’s departure from the European Union, a UK Emissions Trading Scheme was drawn up, closely modelled on it.
The idea was that 10,000 or so factories, power stations, and similar companies responsible for around half the EU’s CO2 emissions would each be permitted a certain maximum volume of greenhouses gases which they could release. If they wanted to produce more than their cap, they would have to buy the right to produce extra carbon.
Punishment
States give companies a carbon budget which they are entitled to trade. The scheme has therefore worked via a series of subsidies to business – like so much supposed regulation in recent years.
Companies have been provided with an asset – a hypothetical entitlement to produce greenhouse gases – which they can sell on the market.
So, between 2008 and 2015, cement producers were gifted between over 5 billion euros of windfall profits; and this to the European representatives of a commercial sector which produces one in twelve of all carbon emissions worldwide.
The point was not to prevent emissions but to enrich those who held property. An OECD report found in 2018, that the firms within the scheme had on average 16 percent more fixed revenues than they would have had they never been regulated.
The scheme has been widely criticised: initially for oversupplying emissions allowance, causing the price of carbon so low that there was no punishment for polluters.
Cement
It has incentivised false accounting: by rewarding companies which make promises to plant trees – even if there is no prospect of them being planted, or to invest in technology to suck carbon out of the atmosphere, even where that technology does not exist; or by buying up the nominal credits arising from the legacy of old industrial technologies and washing them through the system repeatedly, in order to allow business to keep on expanding.
The verdict on the EEUTS appears to be that it caused a one-off reduction of around ten percent in European carbon emissions but that, despite repeated attempts to tighten it, the scheme has diminishing effect every year.
A fall of ten percent in carbon emissions is not to be dismissed; but the EU’s carbon reduction goal is to reach 40 percent within eight years.
The problem with the EEUTS, and with its British counterpart, is that there is no mechanism for the citizen to complain, say, if a cement company misses its carbon targets.
Polluters
It is left to the same governments to enforce which ignore commercial fraud and money laundering, which prosecute people who are overpaid welfare benefits but refuse to prosecute businesses when they have taken millions in grants to which they were not entitled.
Under the EEUTS and under all the Regulations made over the past 40 years, mere voters are not parties to the litigation; we cannot demand that a business be fined or have its property taken away because of its reckless stewardship of its environmental resources.
Perhaps there is a debate to be a had about whether we as a society truly want to make citizens enforcers. There are things to be learned from the way in which employment law has grown at just the same time that trade union have been weakened, a balance is needed between the law and social movements.
But until we can sue and expropriate the worst of the polluters, it is hard to see how business will feel any pressure to change.
Our media landscape is changing drastically – an ultrafast information age is pushing commercialisation and the concentration of ownership to a new level.
Rupert Murdoch’s influential media empire casts a shadow over upon local, organic, and investigative reporting. We hope that the Ecologist Writers’ Fund is a way of creating a fairer publishing model that works in the public interest, and not against it.
The climate crisis is shamefully underreported. At the same time, the conversation around climate breakdown that is taking place in the media is dominated by a few voices, marginalising those feeling the brunt of climate breakdown.
Displaced
Just three companies dominate 83 percent of the UK national newspaper market, according to the Media Reform Coalition. A devastating lack of diversity in journalism is bred from low-paid, insecure, and exploitative working conditions.
And while the mainstream media is failing us, there is a generation of independent reporters emerging from around the world – who are well placed to tell stories that aren’t represented within the Murdoch agenda.
I studied the role of community radio in Colombia’s long history of the violent struggle for my journalism degree. I found community-run radio stations had a vital role to play for those people who were in the firing line during the conflict.
These radio stations would play music, and discuss trivial village issues. And they would also alert other villages when para-military men or rebels were close to attacking.
In various other projects, displaced children in Colombia would use community media projects to take pictures of their surroundings.
Grief
Such projects enabled them to interact with and understand unfamiliar territory, grounding their understanding of a new place through photography and voice recordings.
And while social media is responsible for the saturation of information, false news, and tunnel-visioned views funneled through algorithms – it is also an opportunity for new and fresh perspectives to get heard.
Telling our stories is a way to knit together the frayed seams of breakdown, whether social or environmental or both. Our words are a way of processing and expressing grief, exposing injustice, and most importantly – demanding change.
Exploited
My own journey into journalism hasn’t been an easy one. Even when I began my studies at the University of Westminster I was acutely aware that 60 percent of us students would end up in marketing and PR – and not journalism.
Our words hold power, they are vehicles of hope, a remedy for the heavy turmoil – a way out of the climate crisis. If only they are listened to.
I stubbornly resisted this grim statistical fate. Instead, I drifted in and out of low-paid care, warehouse, and bar work before finally landing on a career path that would accommodate my interest and skills. But for some time, it felt as if the minimum wage grind was killing my energy, drive – and dream.
For most writers in the journalism industry, we’d do anything to get a piece published. Our naivety is exploited, we are tripped up and ripped off. What most writers don’t understand is that their words hold more meaning and value than they could ever comprehend.
Reporters carve history with their pens. They bring forward the realities of war, for example, the failing pursuit of Vietnam. Movements from the Montgomery bus boycott to Black Lives Matter have been captured, reported, told, and retold throughout history.
If we don’t have representative voices now, future generations will see the past through the skewed lens of the mass media.
Ecocide
We are currently witnessing the death of journalism – as an art, profession, and a viable career. Disillusioned, most reporters churn out press releases, also known as ‘churnalism’, or succumb to the pressure of writing clickbait articles – with their only purpose being to gain attention for advertisers.
And at the same time, we’re faced with issues that need our attention more than ever, in an age of attention deficit. As climatic conditions worsen, and corporations commit ecocide after ecocide and get it away with, we’re slowly losing the only chance we’ve got to survive as a species.
Having witnessed loggers chopping down vast areas of supposedly protected National Parks across South America first-hand, I knew that my heart and mind needed to be in environmental journalism.
As protectors of the planet – journalists stand with indigenous peoples, exploited minors, and families that have been poisoned by mercury in their water systems.
Power
Our words hold power, they are vehicles of hope, a remedy for the heavy turmoil – a way out of the climate crisis. If only they are listened to.
The Ecologist Writers Fund aims to provide a scope for writers from marginalised communities, and countries that are most affected by the climate crisis.
