The Right to a Stable Climate Is the Constitutional Question of the Twenty-first Century

A rally following a hearing in Kelsey Cascadia Rose Juliana v. the United States, which is better known as the climate kids’ lawsuit, in Portland, Oregon. Photograph by Robin Loznak / ZUMA

On June 4th, in a packed courtroom in Portland, Oregon, Judge Andrew Hurwitz, of the United States Court of Appeals for the Ninth Circuit, posed an unusual hypothetical question. “Assume that we have rogue raiders come across the Canadian border of the Northwest. They are kidnapping children of a certain age and murdering them,” he said. “The White House refuses to do anything and Congress doesn’t act. Can those people”—the terrorized families and communities—“go to court to compel action?” He was asking Jeff Clark, the lawyer representing the federal government, the defendant in the case. Clark replied, “My answer is no.”

Judge Hurwitz, along with Judges Mary Murguia and Josephine Staton, was presiding over oral arguments in Kelsey Cascadia Rose Juliana v. the United States, better known as the climate kids’ lawsuit. In August of 2015, the twenty-one plaintiffs, who then ranged in age from eight to nineteen years old, sued the Obama Administration and various federal agencies, alleging that the government’s policies on fossil fuels advanced catastrophic climate change and therefore violated the right, guaranteed to them under the Fifth Amendment, that no one shall be “deprived of life, liberty, or property, without due process of law.” In other words, as Judge Hurwitz’s hypothetical suggested, their suit is an attempt to compel action from a government that is ignoring (and furthering) a life-threatening danger that they face. Since then, the case has ricocheted through the courts, gaining strength as urgency around climate change has increased and the Trump Administration has continued to deny that a problem exists. (“The climate goes both ways,” President Trump said in London, last week. “I believe that there’s a change in weather and I think it changes both ways.”) Instead, the Administration has aggressively promoted and expanded the use of fossil fuels, recently announcing that natural gas would be rebranded as “freedom gas.”

Hurwitz asked his question at the start of the hearing, establishing the stakes and reflecting the gravity with which the judges were weighing the plaintiffs’ claims. It pointed to an issue at the heart of the case, and at the heart of most climate litigation—the separation of powers. “The central issue the Ninth Circuit is grappling with is what is the role of the courts vis a vis Congress and the executive branch,” Michael Gerrard, a professor at Columbia Law School and the faculty director of the Sabin Center for Climate Change Law, wrote me in an e-mail. “If a building is on fire and all the firefighters are off at a convention, can the neighbors break into the firehouse and run the firetrucks themselves? Or do they have to wait for permission, while the building burns down? Likewise, if the planet is on fire and Congress and the Administration are checked out, can the courts act on their own?”

Since most major environmental statutes date to the nineteen-seventies, and Congress has not been able to pass a single major environmental law since 1990, the Environmental Protection Agency, other federal agencies, and the courts have been forced to address current problems with laws that are decades old. (The main problem now is that the Senate will not act. In early May, as the House prepared to vote on a new bill, the Climate Action Now Act, which would force the Trump Administration to remain in the Paris climate agreement, the Senate Majority Leader, Mitch McConnell, said that it would “go nowhere.”) Once Trump was elected, and federal agencies no longer had a mandate to address climate change, the courts became the only branch of government where action might be possible. But, in the absence of adequate climate-policy laws, the courts must find their right to act in the Constitution. Two days after Trump’s election, a federal judge for the District of Oregon, Ann Aiken, found that right and issued a major decision, denying the government’s motion to dismiss the Juliana case. “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,” Aiken wrote. “I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.” A trial date was set for early last year, then postponed until last fall. The government, meanwhile, turned to the Supreme Court, asking the Justices to prevent the trial from going forward. In November, they declined to do so, determining that the government needed to bring its objections before the Ninth Circuit first. The Ninth Circuit now must decide whether the case can, finally, proceed to trial.  MORE

 

Liberal concessions on the environment leave the Greens and NDP battling for climate-motivated voters

This posting is part of a CBC News series entitled In Our Backyard, which looks at the effects climate change is having in Canada, from extreme weather events to how it’s reshaping our economy.

Both parties are presenting bold plans to rapidly reduce emissions, but it is still early days


The NDP has struggled since Singh took over as leader, currently sitting around 15 per cent support. The Greens, meanwhile, have momentum.   (Adrian Wyld/Canadian Press)

The climate crisis will be a major issue in the upcoming election, and the NDP and Greens will be jousting to own the file.

Conservative leader Andrew Scheer, who has promised to scrap the carbon tax, probably won’t be the top choice for anyone who considers the environment a priority, and Prime Minister Justin Trudeau has alienated many progressive voters with his government’s carve-outs for industry and $4.5 billion purchase of the Trans Mountain pipeline.

With more than 80 per cent of Liberal, NDP, and Green voters saying climate is “top five” issue in the fall election, the Liberals’ weakness presents the NDP and Greens with an opportunity to tap climate-motivated voters. Both parties are presenting bold plans to rapidly reduce emissions, but NDP leader Jagmeet Singh has so far failed to gain traction, and the Greens will face heightened scrutiny as the election comes closer.

Where carbon pricing once dominated the policy discussion, it appears many centre-left voters in Canada — influenced by discussions catalyzed by the Green New Deal in the U.S. — have become more open to radical plans for public investment to drive the transition away from fossil fuels and create good-paying jobs.

New emissions targets

The Liberals have held firm on carbon pricing, despite the parliamentary budget officer saying the tax would have to double to hit our Paris targets, but the NDP and Greens’ new plans are clearly inspired by what’s happening south of the border. The NDP’s “new deal for climate action and good jobs” pledges a 38 per cent cut in emissions, exceeding the Liberals’ 30 per cent, while the Greens’ “Mission Possible” commits to a much more ambitious 60 per cent reduction by 2030.

Both plans maintain carbon pricing, but they’re supplemented with programs that they say will create hundreds of thousands of jobs retrofitting homes, installing renewable energy, expanding public transit, and doing other work to reduce emissions. The NDP is a more natural party to push this vision because of its longstanding relationship with labour, but the Greens gain the upper hand politically.


The NDP’s “new deal for climate action and good jobs” pledges a 38 per cent cut in emissions. (Jonathan Hayward/Canadian Press)

The NDP has struggled since Singh took over as leader, currently sitting around 15 per cent support (almost five points below its 2015 result), and his presence in Parliament hasn’t made much of a difference. Even though the NDP’s plan is impressive in its commitment to create 300,000 jobs, expand access to employment insurance, and invest in transit, trains, and rural buses, it’s unclear whether Singh can effectively sell these ambitious proposals to Canadians.

The Greens, meanwhile, have momentum. They’ve picked up seats in four provincial legislatures, a second federal seat, their poll numbers have risen to nearly 11 per cent, and leader Elizabeth May has the highest approval rating among her federal peers. However, this attention will come with scrutiny, and it’s not yet clear that their plan will hold up. MORE

Blood Tribe wins massive land claim battle in Federal Court

Alberta First Nation argued reserve should have spread into Cardston, Waterton Lakes National Park


The Blood Tribe’s reserve is the largest in Canada, stretching 1,400 square kilometres across southern Alberta. It’s bigger than the cities of Vancouver, Calgary and Montreal combined. (CBC)

Southern Alberta’s Blood Tribe, the country’s largest reserve, has won part of its 40-year land claim battle against the federal government.

On Wednesday, a Federal Court judge ruled in favour of the Blood Tribe, finding that Canada shortchanged the band when the boundaries were drawn as part of 1877’s Treaty 7.

The reserve stretches 1,400 square kilometres across the southwestern Alberta prairie, from west of Lethbridge and south to Cardston.

Justice Russel Zinn considered evidence including century-old government reports and maps, handwritten letters and oral history from Indigenous elders. In 2016, Phase 1 of the trial began on the Blood Reserve with elders giving an oral history of the First Nation.

Although Zinn ruled the Blood Tribe should have been more than 160 square miles larger than its current size, he denied the band’s bid to have its boundaries include specific land “between the rivers to the mountains.”

That territory would have included everything from the St. Mary River in the east all the way to the Waterton River in the west, and south to the U.S. border.

Lawyers for the First Nation also argued the town of Cardston and part of Waterton Lakes National Park should be included in its territory, but that part of the claim was rejected by Zinn.

Zinn did find that the band did not get all of the land promised by Canada, which used a formula to calculate how much territory it should get based on population. The judge found the Blood Tribe had a bigger population than what the government suggested and was entitled to more land as a result.

In a 205-page written decision, Zinn ruled Canada was in breach of Treaty 7 and that the Blood Tribe was entitled to 710 square miles of land. The reserve is currently 547.5 square miles.

“Canada is liable to the Blood Tribe for this breach of treaty,” wrote Zinn.

A separate hearing will now be scheduled to address compensation for the First Nation. MORE

Billion Dollar Buyout

Report – Billion Dollar Buyout: How Canadian taxpayers bought a climate-killing pipeline and Trump’s trade deal supports it

Fresh from a stunning electoral victory in October 2015, Prime Minister Justin Trudeau went to the historic international climate talks in Paris to proclaim that, “Canada is back.”1 Trudeau promised to leap frog Canada from environment laggard under Conservative Prime Minister Stephen Harper to a global climate leader. While most rich countries at the Paris climate negotiations aimed to limit global warming to a 2.0°C rise above pre-industrial levels, Canada joined low-lying island states and others in the Global South to champion a stricter 1.5°C global limit.

What a difference three years make. In the summer of 2018, Trudeau’s government invoked the “national interest” to justify buying the Trans Mountain oil pipeline system – including a 65-year-old pipeline – from Texas-based Kinder Morgan. Ottawa’s aim was to expand the pipeline to send major volumes of Alberta bitumen to B.C.’s coastal shores for export. Trudeau’s volte-face left observers scratching their heads. Why would a government so committed to urgent climate action potentially enable the growth of Alberta’s oil sands, Canada’s greatest and fastest growing source of carbon pollution?2 The purchase raised other important questions including: Should Canadians care that Ottawa bought a financially dubious oil pipeline? What do Canadians get for this extraordinary purchase? How much will the purchase ultimately cost taxpayers?

Ottawa bought the pipeline while the United States, Mexico and Canada were negotiating a replacement deal for the North American Free Trade Agreement (NAFTA). The United States-Mexico-Canada Agreement (USMCA) includes a chapter on state-owned enterprises (which Canadians used to call Crown Corporations), an energy side letter, and exemptions for the Trans Mountain Corporation, the pipeline company now owned by the government.3 If ratified, the USMCA will likely continue into the 2030s and perhaps beyond. This is the same short time span during which the Intergovernmental Panel on Climate Change (IPCC) says countries must rapidly change all systems to avert climate catastrophe.

This report examines the implications of the USMCA’s provisions on pipelines, specifically the Trans Mountain expansion, and whether the USMCA’s energy measures enhance or reduce Canada’s ability to meet its climate targets. This report argues that the state-owned enterprises exemption and the energy side letter simultaneously reinforce a business-as-usual approach and protect the extraordinary measures (and extreme cost) the Canadian government has taken to continue exporting bitumen.

This report has three sections. The first reviews the Canadian government’s purchase of the Trans Mountain Corporation (TMC). The second section outlines why the purchase was a bad investment, and how the USMCA will continue to enable the government’s poor decision-making about the pipeline. The final section focuses on the implications of the USMCA’s energy goal of integrating Canadian oil and natural gas into the U.S. market.

Download the report:

Billion Dollar Buyout: How Canadian taxpayers bought a climate-killing pipeline and Trump’s trade deal supports it

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Our View: Arguing over a word just another insult to Indigenous people

hearing missing women
Bernie Williams, right, who has been an advocate for women in Vancouver’s Downtown Eastside for 30 years, testifies at the final day of hearings at the National Inquiry into Missing and Murdered Indigenous Women and Girls, in Richmond, B.C., on April 8, 2018. A much-anticipated report on missing and murdered Indigenous women and girls is set to be released to the public in June. The four person commission tasked with examining root causes of violence toward Indigenous women and girls announced today it will hold a closing ceremony in Gatineau, Que. on June 3. THE CANADIAN PRESS/Darryl Dyck

The National Inquiry into Missing and Murdered Indigenous Women and Girls issued its final report on June 3 and it was truly devastating.

The report included stories from thousands of family members and survivors of violence, as well as experts and officials who delivered testimony at 24 hearings and statement-gathering events in 2017 and 2018.

The report said systemic racial and gendered human rights violations — still happening today — are the cause of thousands of disappearances, murders and violence experienced by Indigenous women, girls, LGBTQ and two-spirited people.

The report pointed to examples of harms suffered at the hands of Canadian authorities, including the failure to protect them from exploitation, trafficking and killers; deaths in police custody; physical, sexual, and mental abuse in state institutions; the removal of children; forced relocations; coerced sterilizations; and the lack of funding for social services.

Marion Buller, the inquiry’s chief commissioner, said the tragedy in Canada is a direct result of a “persistent and deliberate pattern of systemic racial and gendered human- and Indigenous-rights violations and abuses, perpetuated historically and maintained today by the Canadian state, designed to displace Indigenous people from their lands, social structures and governments, and to eradicate their existence as nations, communities, families and individuals.”

And then the report said that the thousands of Indigenous women who were murdered and or went missing represent a genocide.

Now, when faced with such overwhelming evidence of a national tragedy, you would think the reaction would be one of horror, but also resolve from Canadians to ensure this madness is stopped in its tracks.

You would, of course, be wrong.

Instead, a few media outlets and some politicians – like Conservative leader Andrew Scheer – decided to obsess about the use of the word “genocide” – arguing that it was incorrect to use this term in connection to what the report outlined.
So, a report details atrocities in our country, but some people felt it was more important to push back and quibble over semantics – distracting people from the truths detailed in the report. The message sent to Indigenous people was that people weren’t listening and didn’t care about their pain. Star newspaper Indigenous columnist Tanya Talaga said it felt like the inquiry’s findings were being “mocked” by pundits in the media. MORE

RELATED:

UN Human Rights Office calls for examination of MMIWG inquiry’s genocide claim
Should Acadian expulsion be considered genocide? New committee will decide
Canada’s Media Was Always Going To Dismiss Genocide Against Indigenous Women

This is a $15 trillion opportunity for farmers to fight climate change

Getty: Farmer hands in dirt

Indigo Agriculture, the Boston-based start-up that uses natural microbiology to revolutionize the way farmers grow crops, has unveiled a first-of-a-kind program to tackle climate change worldwide. The company launched the Terraton Initiative on Wednesday to accelerate carbon sequestration from agricultural soil on a massive scale. The goal: to capture 1 trillion metric tons (a teraton) of carbon dioxide worldwide from 3.6 billion acres of farmland through a marketplace that gives farmers incentives to implement regenerative farming practices.

Capturing atmospheric carbon dioxide from agricultural soil is a way to restore soil health while returning carbon levels to those prior to the Industrial Revolution, according to the U.N.’s Intergovernmental Panel on Climate Change.

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This is a $15 trillion opportunity for farmers to fight climate change

KEY POINTS
  • Indigo Agriculture launched the Terraton Initiative on Wednesday to accelerate carbon sequestration from agricultural soil on a massive scale.
  • To catalyze the Initiative, Indigo is creating Indigo Carbon, a market providing growers with the financial incentive to implement regenerative practices that reduce or remove carbon from the atmosphere.
  • Growers who join Indigo Carbon for the 2019 crop season are eligible to receive $15 per metric ton of carbon dioxide sequestered.
  • The goal: to capture 1 trillion metric tons (a teraton) of carbon dioxide worldwide.
Getty: Farmer hands in dirt
Indigo Agriculture launched the Terraton Initiative on Wednesday to accelerate carbon sequestration from agricultural soil on a massive scale. To catalyze the Initiative, Indigo is creating Indigo Carbon, a market providing growers with the financial incentive to implement regenerative practices that reduce or remove carbon from the atmosphere. Growers who join Indigo Carbon for the 2019 crop season are eligible to receive $15 per metric ton of carbon dioxide sequestered. The goal: to capture 1 trillion metric tons (a teraton) of carbon dioxide worldwide.

Indigo Agriculture, the Boston-based start-up that uses natural microbiology to revolutionize the way farmers grow crops, has unveiled a first-of-a-kind program to tackle climate change worldwide. The company launched the Terraton Initiative on Wednesday to accelerate carbon sequestration from agricultural soil on a massive scale. The goal: to capture 1 trillion metric tons (a teraton) of carbon dioxide worldwide from 3.6 billion acres of farmland through a marketplace that gives farmers incentives to implement regenerative farming practices.

Capturing atmospheric carbon dioxide from agricultural soil is a way to restore soil health while returning carbon levels to those prior to the Industrial Revolution, according to the U.N.’s Intergovernmental Panel on Climate Change.

Today many environmental experts say agricultural farming emits 25% to 35% of all CO2 into the atmosphere — more than all modes of transportation combined. The trend has contributed to extreme changes in weather that are reducing crop yields and making livestock more vulnerable to disease. All this threatens the global food supply as demand from a booming global population grows.

“The potential for agricultural soils to capture and store atmospheric carbon dioxide is the most hopeful solution I know of to address climate change,” said David Perry, Indigo’s CEO. “The technology and know-how for regenerative farming already exists, so we can begin to make a difference right now.”

“And this can be done on a massive scale,” says the company’s co-founder and chief innovation officer, Geoffrey von Maltzahn.

These practices include minimal tillage of the soil, cover cropping, crop rotations, using fewer chemicals and fertilizers, and incorporating livestock grazing. These are all ways to increase soil’s carbon content and water retention so less CO2 is released into the atmosphere.

As Maltzahn explains, soils play a key role in the carbon cycle by soaking up carbon from dead plant matter. Plants absorb CO2 from the atmosphere through photosynthesis and pass carbon to the ground when dead roots and leaves decompose. But it can cause carbon to be released from the soil at a faster rate than it is replaced. This net release of carbon to the atmosphere contributes to global warming. MORE

Volvo’s sporty looking Vera self-driving electric truck will go to work in Sweden

This is disruptive technology for the transportation industry. In Canada more than 280,000 drivers are employed in trucking even as the trucking industry is facing a shortage of drivers. Amazon has recently cloned a neighbourhood  to test its delivery robots. Huge changes are coming.

1860×1050-vera-in-port

The Vera autonomous, electric truck from Volvo’s trucking subsidiary is not what you might expect in a transport truck — it looks like a road-hugging sportscar, something emphasized by its lack of a place for humans to sit. The real reason it looks like this is that it’s totally self-driving, however — and tailor-made for use in specific situations like serving the Swedish port in Gothenburg where it’ll soon begin operations.

Vera’s inaugural job will be to move goods packed in cargo trailers from a logistics center to the actual port terminal, where it’ll be loaded onto boats for transport. This first commercial use of the connected, electric freight-moving vehicle will be done in partnership with logistics company DFDS.

Use of the Vera will make up one part of a larger connected system to move goods from the logistics center to distribution destinations around the world. They’ll operate autonomously but be monitored by a central operator working out of a control tower, and they’ll be operating at a top speed of only around 24 mph. MORE