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spk_0

Welcome to the Econews report, I'm your host this week, tom wheeler, executive director of epic, the Environmental Protection Information Center and we are talking about climate change this week, I have three incredibly smart folks here to talk about climate change and the risks of climate change and how we should think about these risks when trying to protect our fundamental human rights, right to clean atmosphere or safe atmosphere. So joining me is Andrea Rogers attorney at our Children's Trust. Hey Andrea

spk_1

hello, thank you for having us.

spk_0

We also have Lauren sunken professor at University of Washington School of Law. Hey Lauren

spk_2

Hi, thank you.

spk_0

And jennifer Marlowe professor of environmental Law here at cal poly Humboldt Bay

spk_3

thanks for having us.

spk_0

Well, I am super excited. We all share a connection to which is the University of Washington School of Law of which I am a graduate of so Andrea, her dad is a professor, was a professor of environmental Law there, but Lauren, jen and I are all graduates of Law. So you know, it's a cool club. I'm really excited to talk with some other huskies here today, good dogs, let's let's talk about the way that we think about climate change. So often you'll you'll hear discussions expressed about oh we need to keep it below 1.5 degrees or two degrees Celsius. This is some sort of a target and people will point back to international panels on climate change, the United Nations gatherings and use this as a risk threshold. You know, we are trying not to cross this line, but this can be problematic or or folks on this call, believe that this is problematic. And so this is kind of the underlying theme of today's show, Lauren, how did we ever end up at this place where where we have like this two degree idea, two degrees Celsius idea of this is what we're trying to avoid. Can we go back in history? Where does this number even come from?

spk_2

Yeah, it's something that I had taken for granted that this sort of target was a goal that we should be aspiring to. And it wasn't until basically until I started working with jen and Andrea that I started looking into the origin of two degrees and where we see it probably most prominent now is in the 2015 paris agreement there. The government that signed the paris agreement agreed to the long term goal of limiting global average temperature increase to quote well below two degrees Celsius above pre industrial levels. And to pursue efforts to limit the temperature increase to 1.5 Celsius above pre industrial levels. So that's where it became kind of enshrined. But the history back from that, that number was really, it was one of international consensus. It was more of a heuristic, not a scientific standard of protection and the way it was used in scientific papers starting in 1967 in the Journal of atmospheric Sciences. All it was was a post World War Two estimate of what a doubling of C. 02 would result in and it was a doubling of C. 02 would result in a warming of two degrees Celsius. So with that is kind of a flat fact. It wasn't like okay we should be working to this as a goal. This isn't good or bad, it was just a statement. And similarly a decade later an economics professor by the name of William Nordhaus authored a couple of papers and in it, he said and you know again it's in an economics paper from an economics angle that a warming world of more than two or 3°C above current average temperatures would take the climate out of the range of observations which have been made over the last several 100,000 years. So again it's more of a tangential reference. Not something that we should aspire to. And what happened is over the course of time and and decade after decade. The language that was coming out of these papers and some of them were scientific. But the fact was that 2°C was something that should be a threshold warming limit, put simply bad things happened at 2°C and that was something that they were looking at with their models. But as often it happens with with science, something gets popularized usually by people with a political agenda and I don't mean that in a in a bad way. Just that often policymakers need something to anchor a policy around. And so that number begin to gather traction because it oversimplified something as complex as climate change to something that you could take to a negotiating table and And try to get various parties to agree to. It also wasn't binding. It never required any country to limit themselves or their emissions. It just was an aspirational limit. And so without saying more, that's kind of in a nutshell how it got to this 2015 Paris agreement when no scientist had ever said, Hey, this limit is wonderful and it means great things for our Earth. In fact, it's just the opposite. It locks us into a disaster.

spk_0

So let's let's talk about the 2015 Paris agreement. Andrea can you tell us about what our commitments under international law in regards to 2.0°C?

spk_1

Well, in the United States, nothing. I mean, you know, it's not enshrined in domestic law in any way in the United States. So It really has no legal significance. And us courts are pretty unique around the world in having a fairly strong distaste for international legal principles and treaties in General Justice. Scalia famously turned up his nose at the context of international principles in the context of the 8th amendment, cruel and unusual punishment. So U. S. Courts have really accepted that trend and are not looking to international legal principles in climate cases or in any other cases, there's of course exceptions to that general proposition, but in other courts in countries around the world, they have adopted the paris agreement essentially is and codified it in domestic law and that ultimately is what courts are doing is courts are holding countries accountable for reducing emissions in line with achieving the paris agreement goals. And that's where we see a problem because when you look at the paris agreement, it's a tremendous success with respect to international diplomacy. But if we get to 1.5 and 2° of heating that's incredibly destructive to the climate system, particularly for young people and future generations. So there's a difference between politically agreed target and what the scientists say is necessary to protect earth systems on which human life depends.

spk_0

Let's talk about what the world looks like at 1.5 to 2 degrees warming jen you study sea level rise here in Humboldt Bay so perhaps you can localize the issue. What does this world seem like with such an extreme amount of warming?

spk_3

Well, we've already seen warming by an average of 1.1 degrees Celsius and we've seen the impacts of that here in Humboldt Bay with the fastest relative rate of sea level rise on the west coast With Pakistan's flooding most recently, which is driving loss and damage agreements at the cop in Egypt just just finalized. We're currently on a trajectory to warm between 2.1 and 2.9°C by the end of this century. But even with the changes we've seen under 1.1 degree Celsius rise in global average temperature is unprecedented. So we've seen a United Nations report saying there's a Children's climate risk index framing climate crisis as a child rights crisis which creates incredibly challenging environments for Children to live play and thrive. According to that report, even the I. P. C. C. In a special report on 1.5 degrees Celsius of heating determines that all natural and human systems will be fundamentally altered. In a scenario of 1.5 degrees Celsius, warming with disadvantaged and marginalized communities hit the hardest. So the point is that the IPCC is saying warming of 1.5 degrees Celsius, which is the lower level of this aspirational target is not considered quote safe for most nations communities, ecosystems and sectors and poses significant risks to natural and human systems as compared to the current level of warming of one degree Celsius. And we understand the disproportionate disadvantaged and vulnerable populations, higher food prices, income losses, lost, livelihood opportunities, adverse health impacts, population displacements, some of the worst impacts on and those dependent on the coasts which are the tide lands are moving inland, agricultural systems and the sort of seasonality is shifting sort of the lead killer is these changes in seasons that make agriculture really unreliable, especially for those in the tropics. So we see just a litany and I think everyone on your show is intimately familiar with With the litany, but we're looking at when courts are applying these aspirational targets to assess fundamental human rights protections? Our argument is that this level in the Paris agreement, 1.5-2°C is not safe and more so it's a total loss for entire communities. And if the law is going to use those targets as a proxy standard for human rights protections were really as legal advocates, not doing the best we can to serve the of our most vulnerable clients. So

spk_0

I think that's

spk_3

that's it.

spk_0

That was a sober and and depressing accounting of reality. I think we all need a drink right now. So we have we have international treaties that try to keep us below 2.0° Celsius. We have this kind of loss of clarity in the kind of dialogue about warming where 2.0 is is is mistakenly being considered as as a risk threshold, an appropriate risk threshold. Instead of recognizing that we have significant impacts on human rights below two point Oh, so let's let's turn to the United States and Andrea perhaps you can talk about the work of our Children's Trust and trying to recognize here in the United States a legally you're trying to get courts to recognize climate change and to recognize that we have a right to a healthy climate here. So how does this international world then bleed back into your work at our Children's trust and maybe talk about the kind of cases that our Children's Trust has been bringing. Sure, and

spk_1

maybe to put it even more simply tom is, you know, we're asking courts to find that it's unconstitutional for governments to knowingly kill their Children. I mean, that's really what it comes down to our government has known for decades that the burning the use of using fossil fuels for energy will cause catastrophic climate change impacts. And in our case juliana versus United States, the Ninth Circuit panel agreed with us and recognize that there's a long history of US knowledge over 50 years dating back President, the President had been warned of the dangers of climate change. And in spite of that knowledge, every president has pursued an energy policy that is largely based on fossil fuels and the impacts that we're seeing today are no surprise. They're probably they're fairly in line with what the climate climate scientists have been projecting for decades. And so our theory is that that conduct is unconstitutional. You know, Children have a right to life. They have a right to liberty. They have a right to equal protection under the laws. And we are asking the court to find that those constitutional rights are at play in the context of climate change. So it sounds simple, you know, does government have a right to kill its own Children. And the government takes the position that it does that it's conduct that ha Arms Children should not be subject to judicial review by Article three courts. And so far they've been somewhat successful in that there's dissenting judges that are now coming forward and and and who don't believe that to be a tenable position, but that's what our cases are really about. And the primary case that we talked about in the article is Juliana vs United States. It was file over seven years ago on behalf of 21 young americans who live all across the United States and are experiencing a variety of different climate impacts, including displacement from homes suffering wildfire smoke, incredible climate distress in one form or another. You know, these are kids who have been plaintiffs for some of them over half their lives as it has wound through the judicial system, the Department of Justice has employed unprecedented legal defense tactics, filing things called petitions for writ of Mandamus, trying to take it out of the normal process. And so we were supposed to go to trial in 2019 or 2018, and Justice roberts stayed that trial 10 days before it was about to start. And that set us on a path to head up to the ninth Circuit that ruled in a 2 to 1 decision, the court recognized that the government was injuring the Children, that the government was a substantial cause of their injuries because of their policies causing climate change, but even though the government was injuring their own Children. The court held that it was without power to order any kind of remedy to stop that? And there was a dissent in that decision. And in light of that decision, we have now filed a motion to amend the pleadings to take out the request for injunctive relief that the ninth circuit found objectionable. And we're now proceeding. Hopefully we'll proceed. We're waiting for a decision from Judge Aiken, hoping to prove that we're entitled to a declaration that the fossil fuel energy system of the United States is unconstitutional.

spk_0

The econews we're talking about climate change and whether the courts use of 1.5 or 2°C is problematic. This is really important work. I am. I've been tracking the work to to get climate recognized as a threat to our fundamental constitutional rights since I was in law school, as you say, the plaintiffs who began as kids are now adults in some situations here. It is an indictment on the court system as well, that that this has taken so long to resolve. So I wish you the best of luck. So if courts are inappropriately using these international consensus standards, the 1.5-2.0, in trying to think through legal challenges here in the United States or elsewhere around the world and that's problematic. What is a better way of of of thinking about the threat of climate change for a judge? At what point can we say that someone's fundamental human rights are being abused, Lauren do you want do you want to try to tackle that one?

spk_2

Yeah I can start and um I know Andrea has done a lot of this just in the context of her litigation so then she can um of course supplement whatever I say, but the better metric and the one we argue in our paper is to use earth's energy imbalance and that would be The number that would restore our climate system to one that would protect fundamental human rights and correct the sort of horrible course we're on right now. And so just to put a carbon metric on that, that would equate to 350 parts per million If we were at 2° I believe that something like 560 parts per million of carbon. So a huge difference. And the thing that I think is really essential in all of this is that over the course of half a century when or even more when scientists have been working on these models and developing predictive aspects of how fast the world is warming and how much carbon can we have in it to still have a climate system that's habitable for future generation. We need to rely on the scientists to tell us the best available data and I think climate litigators and judges have to be able to consider that as the best available evidence we have if we're actually trying to create a remedy that is indeed a remedy.

spk_0

So, I I just briefly got online and checked. We are at 417 parts per million. As of november 17th 2021 we are now averaging above 415 parts per million this year. So if 3 50 is a a threshold of concern for us, we are above that threshold. We are in a place where we need to take drastic and immediate steps to reduce greenhouse gas emissions and start to have negative emissions so that we can Get back to a a sustainable climate. You have a paper out, it's been mentioned before on this show the injustice of 1.5-2°C. The need for a scientifically based standard of fundamental rights protection and constitutional climate change cases? Andrea I I imagine that you wrote this article with a purpose. What are you trying to achieve through this authorship?

spk_1

Yeah, that's a that's a really good question. And I think part of it comes out of frustration because we are seeing this trend that jen mentioned in the litigation realm of where advocates are asking the court to define human rights protection based on what was politically negotiated in the paris agreement. So instead of asking courts to listen to the scientists and have the scientists tell them what is too much? Where do we draw the line instead of having that coming from scientific evidence in the form of declarations and live testimony from the scientists who are out there measuring sea level rise, measuring earth's energy imbalance. Instead of that, we are relying upon politicians who were able to negotiate for the paris agreement. And while, you know, it's a success, they did the best they could in the context of political negotiations. Do we really want to define our fundamental human rights based upon what is politically feasible? I don't think that's what we want to do to have majoritarian political negotiations define what it means with respect to the right to life, The right to live in your family home, your rights to liberty. You know, that really should be a question when you're dealing with climate change, which is a scientific phenomena. We need to hear from the scientists now, that doesn't mean that the court will be able to order, what is needed to resolve the global climate crisis, right? That's not what a court can do in one venue. But what a court can do is say, Okay, where we are at 400 and so, 17 parts per million with, you know, third of Pakistan being underwater. The floods, incredible floods that have happened in africa I mean, tragedy after tragedy around the world, the court can say where we are today is too much and human rights violations are happening today and recognize what the science says with respect to restoring earth's energy imbalance and getting us down to back the 350 parts per million by the end of the century and going down from there if we want to protect ice and if we want to protect permafrost and if we want to protect and have coral reefs, but the courts need to be provided that information that best available science. And we are seeing advocates just aren't doing that advocates are presenting courts with this politically negotiated information as opposed to what the hard science says. And so, um we're troubled by that. We don't think it's it's right to that certain communities, for example, in the arctic that they're disposable, you know, and if you accept 1.52 degrees warming, that's what you're saying. Because the arctic communities, many arctic communities will be forever changed at levels of warming like that. So we we think that that approach needs to be rethought and the purpose of our paper is really to spur the discussions so that we can start thinking about how should these claims be framed in courts of law.

spk_0

So we have a variety of constitutional rights, fundamental human rights that are protected by our constitution. We have the enumerated bill of Rights. So we have a right against cruel and unusual punishment under the 8th amendment. We also have other rights which are constitutional. They aren't explicitly laid out in our constitution right, we have a right to privacy that undergirds, our our right to marriage that once under good at our our right to an abortion. I imagine that there have been similar kind of issues in protecting our other fundamental human rights where there have been kind of the science questions before that we might be able to learn from and we might be able to at least in the U. S. Context apply lessons from. Right. So I'm thinking perhaps about cruel and unusual in the way that drug cocktails might work to cause or not cause pain, jen or or Andrea or Lauren. Are there any examples that you use or any other areas of protection of our our civil liberties are rights that you can think about. That is a good kind of learning lesson for climate litigation.

spk_1

Yeah. I think there's a variety of different ones and one context that's sort of happening right now in a lot of cases before the Supreme Court. It's even a it's more social science than it is physical science in a way. But looking at whether someone who is going to be executed, whether they have a constitutional right to be supported by someone of their own faith, do they have a right to have someone as they do? I be in the room with them? Can the person touch them? Can the person be reading from a prayer book? The court is considering all of these different standards and some where the court has to draw the line and the court can say yes you can have a priest in the room with you, but no, they can't put your hand on you because that would be disruptive of accomplishing the execution as it were. So the court is looking at those different circumstances and looking at, you know, what is protective of the inmates, freedom of religion and their and their and their fundamental rights. And they're drawing the lines in certain places and people can disagree and agree, but they're doing that based on evidence that is presented by the parties. So that's one example and it's more in a context that, you know, I don't know if it's necessarily a physical science, but courts do draw the line all the time whether it's in the context of abortion. The line used to be at viability was for 50 years, that was the constitutional standard. That of course has changed now. They'll do that in the context of guns. What kind of guns can you restrict? What can you not restrict? How do you draw that line? That's just what courts do with respect to constitutional rights. Their con constantly drawing those lines. And in the context of climate change, it's really impossible to draw that line without hearing what the physical science says because climate change of physical science problem. So that's just what the evidence would look like

spk_3

to add to what Andrea had said, which is another case that I think is interesting. It doesn't necessarily address the physical science evidence needed in climate litigation that Andrea just pointed to the need for but there's a case roper V. Simmons argued I think in the early two thousands it's a cruel and unusual punishment case and it looks at the execution of miners. And what's interesting about this case is that the question was the government in the case was saying that state courts couldn't overturn a Supreme Court decision by looking at evolving standards because that would be dangerous because courts were starting to see especially looking at international developments that this the United States executing minors was horribly improper, unethical. And the courts were looking at evolving standards that could potentially you be used to make sure That states would decide that these executions would would need to be prohibited under the 8th amendment protecting individuals from cool and unusual punishment. And I think this question of evolving standards could be utilized especially because we know what we've learned so much more about climate change in the attribution of climate change to severe flood. Like in Pakistan, we can understand those linkages much better. And these evolving standards such as Earth's energy imbalance that look at more than one metric than the even 3 50 PPm. Which is a useful a useful threshold. But it it ends up being subject to the same critique as 1.5 to 2 degrees Celsius because it's not evolving. So as Andrea mentioned really to restore Earth's energy imbalance. We need to get down to 3 50 PPm by 2100 and then go lower than that. And so I think this concept of evolving standards could be useful in thinking about pushing for updated scientific effort to support fundamental human rights protections and climate change.

spk_0

It seems that we have a Supreme Court which is not looking to find new fundamental human rights that has a very static view of the constitution, right? A textual view that we need to interpret what is fundamental based on the view of the framers at the time of the adoption of the constitution. We've seen an erosion in the past couple of years of fundamental human rights in some areas like reproductive access. We've seen an expansion however, in other areas like religious liberty is the current court makeup is the kind of direction of our court system as led by the Supreme Court. Is that changing strategy at our Children's trust? Andrea?

spk_1

Yeah, absolutely. And just recently we actually submitted notices of supplemental authority in the juliana case where we explain how the court's reasoning in Dobbs in the west Virginia versus E. P. A case and also in the gun rights case bruin versus new york. We explain how those actually support the legal theory in juliana, you know, in Dobbs like it or not, the court declared whether the right exists or not. I think unfortunately and unjustly the clear the right did not exist. But I think what that shows is that is the role of courts. They do this, they're supposed to do this based on hearing a full record of evidence. So, you know, whether the court will agree with us at the end of the day, that's something that's more challenging to predict. But I think we should get over the first hurdle that it is the proper role of the court to hear and decide these cases. The other takeaway we had from Dobbs was the value the court put on potential life. Well, you look at the science now, climate change is taking years off the lives of Children. And if you're going to protect potential life, well then you better get working on climate change because climate change affects fetuses in the

spk_0

and we are out of time. Many thanks to Andrea Rogers laura sink in and jen Marlowe for joining the Econews report today. You can find more information about their article and Earth's energy imbalance and other climate related topics on the Lost Coast outpost dot com or in the show notes for this podcast, join us again next week on this time channel for more environmental news from the north coast of California