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| Vivek Maru |
I was protesting in Washington, D.C., heeding the call of leaders from communities resisting new fossil fuel facilities, including the Line 3 pipeline in Minnesota and the Formosa Plastics plant in Louisiana. These leaders asked Americans to commit civil disobedience last week as a way of insisting that the Biden administration halt new fossil fuel projects and declare a climate emergency.
As the conveners of the protests wrote, "we have everything to lose and no time to waste."[1]
In May, the International Energy Agency concluded that preserving "an even chance" of keeping below 1.5 degrees Celsius of warming — above which the droughts, floods, fires, storms and ocean acidification we're already experiencing become profoundly worse — requires us to stop building new fossil fuel infrastructure immediately.[2]
And yet President Joe Biden — who's been more vocal on climate than any president in U.S. history — is acting inconsistently.
To his credit, he canceled the proposed Keystone XL pipeline, concluding that it would be contrary to his climate goals, but he has allowed construction of Line 3, through Minnesota, which seeks to transport 760,000 barrels per day of tar sands oil, one of the dirtiest kinds of fuel in existence. Earlier this month, days after the pipeline leak off of Huntington Beach in California, it was confirmed that the administration will offer 80 million acres of the Gulf of Mexico for leases to extract oil and gas.[3]
By approving fossil fuel projects, the president is poking new holes in the hull of the one ship we have, the one that's sinking rapidly. Standing in the way are some of the people who could be the first to drown, who have long been subject to neglect and abuse, like the largely African American residents of the 5th district of St. James Parish in Louisiana who are resisting the $9 billion Formosa Plastics plant,[4] and the bands of Ojibwe and Chippewa in Minnesota who are opposing Line 3.[5]
Siqiniq Maupin, who belongs to the Iñupiaq people of Alaska, spoke to more than a thousand demonstrators in Washington, D.C., on Oct. 11, Indigenous Peoples' Day.
Biden has backed an expansion of oil drilling on the North Slope of Alaska that would extract 100,000 barrels of oil per day for the next 30 years.[6] Maupin said that those resisting drilling have been told that "we are a vocal minority, while our caribou have black bone marrow, while our fish have mold, while we have dynamite blasting less than 7 miles away shaking the houses every night for the last four years."
Maupin said she wasn't giving up. "Our grandchildren, our great-grandchildren," she said, "will not have an earth to live on .... We must continue until we melt."
Maupin and over a hundred others, myself included, got arrested that day for occupying space in front of the White House. The U.S. Park Police, who were firm but courteous, charged us with "incommoding."
Violating the law does not mean giving up on law. To the contrary, law is one of the few things that ordinary people can use to constrain power.
Twenty years ago, when I clerked for Judge Marsha Berzon on the U.S. Court of Appeals for the Ninth Circuit, Judge Berzon impressed upon me and my batch of progressive-leaning clerks that we were there to interpret and apply rules, not break them. The law, she told us, is worth our fealty even when it's wrong.
Since then, I've had the privilege of working with so-called community paralegals — organizers who help their communities use the law in the face of social and environmental injustice — in several countries.[7] Those paralegals have taught me a slightly different lesson, a more pragmatic variation on the judge's version: Even when the law is deeply imperfect, or even when it's largely designed to repress, it can be invoked strategically for good.
In India, where rates of environmental noncompliance are as high as 57%,[8] paralegals working with the Centre for Policy Research help communities to understand environmental regulation and to seek enforcement directly from administrative institutions, including pollution control boards and coastal zone management authorities.
Between 2018 and 2020, paralegals achieved remedies in over 120 cases across four Indian states: stopping a coal plant from unlawfully encroaching on community grazing land, for example, and ensuring that a bauxite refinery implements compulsory measures to mitigate air emissions.[9]
In Sierra Leone, where administrative institutions are weaker, paralegals often support communities to advocate with corporations directly, or with traditional authorities like paramount chiefs.[10] If those methods fail, paralegals work with a pair of lawyers to litigate.
In 2018, for example, communities in Northern Sierra Leone successfully evicted a palm oil company that had unlawfully claimed over 100,000 acres of forest and farmland.[11]
Those victories are significant. But in many places today, law alone is not getting people far enough.
In India this month, tribal people from the Hasdeo Arand forest marched 300 km to their state capital, Raipur, to oppose a contract Prime Minister Narendra Modi awarded under which 18,500 acres of forest would be destroyed to mine 964 million tons of coal.[12]
In Brazil, in August, members of 176 Indigenous groups held the largest Indigenous-led demonstration in Brazil's history to oppose President Jair Bolsonaro's policies, which have allowed record levels of illegal mining, logging and agribusiness in Indigenous territories.[13]
All of these movements are insisting on the implementation of existing law, including the 2006 Forest Rights Act in India, the 1988 Brazilian Constitution, and numerous treaties that the U.S. government signed with Indigenous peoples.
Because their governments are falling short of the laws they've committed to, these communities have chosen to deploy their bodies as well. In doing so, to fend off climactically disastrous events, they are protecting all of us.
They are also carrying forward a powerful tradition. The great civil rights lawyer and eventual U.S. Supreme Court Justice Thurgood Marshall was often critical of Martin Luther King Jr. — at one point, Justice Marshall may have called King a "boy on a man's errand"[14] — but the pair ended up making an extraordinary team.
Law and protest aren't mutually exclusive alternatives. In this moment of crisis, we can and should use them in tandem.
What Can Lawyers Do?
I encourage everyone in the legal community to contribute, with your money, your skills and your bodies, to grassroots environmental justice organizations; see, for example, the members of the Climate Justice Alliance[15] or members of the Legal Empowerment Network.[16]
Indigenous peoples and youth have shown extraordinary leadership in confronting the climate crisis; see for example groups like the Indigenous Environmental Network,[17] the Power Shift Network[18] and the Sunrise Movement.[19]
Finally, a number of diverse grassroots coalitions have come together to pursue systemic change, including the Green New Deal Network,[20] New York Renews,[21] Renew New England,[22] Gulf South for a Green New Deal,[23] and the Mid-Atlantic Environmental Justice Coalition.[24]
Here are a few more targeted ideas.
Lawyers in the Private Sector
Ensure that your clients respect the rights of communities that host their operations. Approximately 2.5 billion people live and depend on community and Indigenous lands.[25] Corporations and governments regularly (and sometimes unintentionally) grab or exploit those lands without the consent of the people who live there.
On the other hand, greater attention to community rights can be good for the corporate bottom line, by reducing the chances of conflict down the road.[26] The basic principle applies whether or not the land is under community tenure.
Lawyers should help companies to ask: Do the people whose place this is truly have a say in whether something gets built, and on what terms? Once a facility is operating, does the host community have a role in enforcing those terms, and in revising them periodically? Corporate responsibility means, at a minimum, answering yes to those questions.
Another option is to consider focusing your practice on domains that are crucial for the rapid transition we need to make, including clean energy, public transportation, affordable urban housing so people can live more densely, waste reduction, sustainable agriculture, environmental cleanup, and stewardship of natural places. Help responsible companies operating in those domains to be productive, effective, lawful and ethical.
In addition, if you are at a law firm, consider advocating that your employer adopt the Law Firm Climate Pledge, which means you will not serve the fossil fuel industry.[27]
Public Interest Lawyers
Lawyers committed to countering the imbalance of power have an especially vital role to play. Though environmental law has traditionally been treated like a separate practice area, climate and environment cut across many public interest domains, including racial, gender and economic justice.
I'd encourage public interest lawyers to resist an overly technocratic framing of the lawyer's role. Seek to place the power of law directly in the hands of communities facing harm.
Partner with grassroots organizations; help them to understand what the law says, and to use law alongside other strategies, including direct action.
A community paralegal is simply an organizer who has a sharp understanding of law. Lawyers and organizers, I have found, can go on transformative journeys together, through which lawyers learn from organizers about building community power, and organizers learn from lawyers about law.
In addition to fighting polluting industries, to find a pathway out of our crisis, our movement has a great deal of proactive lawmaking to do. We need laws at every level — federal, state, county, city, town — that fundamentally change the rules of our economy, so that environmental destruction is no longer incentivized or authorized, and that accelerate the transition to a sustainable way of life.
Like law in general, law writing has been dominated by elites. Can you learn legislative drafting skills, and deploy them on behalf of movements for change?
Examples of laws that were conceived of by movements are the 2019 New York Climate Leadership and Community Protection Act,[28] which was pioneered by the New York Renews coalition, and New Jersey S.B. 232,[29] which denies permits to facilities that would worsen human health in at-risk communities.
Neither law is perfect, but both were groundbreaking, and both inspired people in other jurisdictions. There is a dearth of drafting experts who are serving movements to write laws like those. Help close the gap.
Lawyers in Government
Our environmental crisis is fundamentally a governance challenge. We will not succeed without robust, well-functioning public institutions.
Lawyers in government must enforce zealously. We have a major enforcement gap with respect to environmental and public health regulation, and federal enforcement declined dramatically during the Trump administration.[30]
There is a lot more we can do with the rules we have. For example, over 250 facilities in Washington, D.C., where I live, violated the Clean Water Act in the last three years.[31] Can we build a new norm of zero-tolerance for environmental violations?
Government lawyers can also involve affected communities in everything they do.
Our regulatory regime is overly technocratic and top-down. Permitting will be more meaningful if regulators (1) deny permits when communities do not want a polluting facility in their neighborhood, and (2) include, in permits that are granted, conditions that reflect community concerns.
Enforcement will be more effective if regulators are genuinely responsive to community complaints. Laws will be better-crafted and more successful if they grow from the wisdom of the people who have been bearing the brunt of the problems we are trying to solve.
The fate of our species is on the line. Fellow lawyers, we need all hands on deck.
Vivek Maru is CEO of Namati and co-author of "Community Paralegals and the Pursuit of Justice" (Cambridge University Press, 2018).
Disclosure: Namati co-convenes the Legal Empowerment Network and the Mid-Atlantic Environmental Justice Coalition. Maru serves on the board of Renew New England.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] People vs. Fossil Fuels, "Invitation," available at https://peoplevsfossilfuels.org/invitation/.
[2] International Energy Agency, "Pathway to critical and formidable goal of net-zero emissions by 2050 is narrow but brings huge benefits, according to IEA special report," available at https://www.iea.org/news/pathway-to-critical-and-formidable-goal-of-net-zero-emissions-by-2050-is-narrow-but-brings-huge-benefits.
[3] See Earthjustice, "With Oil Spills in California and Gulf, Biden Administration Plows Ahead with Illegal Lease Sale," available at https://earthjustice.org/news/press/2021/with-oil-spills-in-california-and-gulf-biden-administration-plows-ahead-with-illegal-lease-sale.
[4] See Steven Mufson, The Washington Post, "Huge plastics plant faces calls for environmental justice, stiff economic headwinds," available at https://www.washingtonpost.com/climate-environment/2021/04/19/huge-plastics-plant-faces-calls-environmental-justice-stiff-economic-headwinds/.
[5] See Tara Houska, Vogue, "A Letter From a Jailed Line 3 Water Protector," available at https://www.vogue.com/article/letter-from-a-jailed-line-3-water-protector.
[6] See Lisa Friedman, The New York Times, "Biden Administration Defends Huge Alaska Oil Drilling Project," available at https://www.nytimes.com/2021/05/26/climate/biden-alaska-drilling.html.
[7] See Vivek Maru, "How to put the power of law in people's hands," TED, August 2017, https://www.ted.com/talks/vivek_maru_how_to_put_the_power_of_law_in_people_s_hands; Vivek Maru and Varun Gauri, Community Paralegals and the Pursuit of Justice, Cambridge University Press, 2018; Namati, "Practical Guide for Environmental Justice Paralegals," available at https://namati.org/resources/practice-guide-environmental-justice-paralegals; Namati, "How to Develop a Community Paralegal Program," available at https://namati.org/resources/developing-a-community-paralegal-program/; and Vivek Maru, Democracy Journal, "Give the People the Law," available at https://democracyjournal.org/arguments/give-the-people-the-law/ (arguing that unauthorized practice of law regulations have hindered the development of paralegal efforts in the United States).
[8] See Comptroller and Auditor General of India, "Report 39 of 2016 - Ministry of Environment, Forest and Climate Change, Performance Audit," Union Government Chapter 4, "Compliance to Specific Environment Clearance Conditions," available at https://cag.gov.in/uploads/download_audit_report/2016/Chapter_4_Compliance_to_Specific_Environment_Clearance_Conditions_Union_Government_Report_39_of_2016.pdf.
[9] See Namati, "2018 Namati Annual Report," pp. 16-19, available at https://namati.org/wp-content/uploads/2019/04/2018-Namati-Annual-Report.pdf; Namati, "Impact Report 2019-2020," available at https://namati.org/impact-report-2020/. See also Tina Rosenberg, The New York Times, "India's Barefoot Lawyers," available at https://www.nytimes.com/2017/08/08/opinion/indias-barefoot-lawyers.html.
[10] See Namati, "Land & Environmental Justice - Sierra Leone," available at https://namati.org/impact-report-2020/sierra-leone/.
[11] See Amy Fallon, MobLab, "When people power meets litigation: A history-making success story in Sierra Leone," available at https://mobilisationlab.org/stories/how-namati-equipped-sierra-leone-community-to-win-land-back/.
[12] See Chitrangada Choudhury, Article 14, "Chhattisgarh's Adivasis Are On 300-Km March To Save The Hasdeo Forests, Latest In A Decade-Long Protest Against Coal Mining," available at https://www.article-14.com/post/chhattisgarh-s-adivasis-are-on-300-km-march-to-save-the-hasdeo-forests-latest-in-a-decade-long-protest-against-coal-mining--615e7394bbf8b.
[13] See Andrew Fishman, The Intercept, "Brazil's Indigenous Groups Mount Unprecedented Protest Against Destruction of the Amazon," available at https://theintercept.com/2021/08/28/brazil-amazon-indigenous-protest/.
[14] See Juan Williams, The Washington Post, "The Case for Thurgood Marshall," available at https://www.washingtonpost.com/archive/lifestyle/magazine/1999/02/14/the-case-for-thurgood-marshall/372d95df-6320-426b-ab82-e41f65f51f92/.
[15] https://climatejusticealliance.org.
[16] Over 2700 groups from 170+ countries are part of The Legal Empowerment Network, all of whom combine the power of law with the power of people. The member directory allows you to search by issue or country. Here is a link to member organizations that self-identify as working on environmental justice: https://namati.org/network/members/?member_type=org®ion=0&country=0&issues=environmental-justice.
[17] https://www.ienearth.org/.
[18] https://www.powershift.org/.
[19] https://www.sunrisemovement.org/.
[20] https://www.greennewdealnetwork.org/.
[21] https://www.nyrenews.org.
[22] https://www.renewnewenglandalliance.org.
[23] https://www.gulfsouth4gnd.org.
[24] Short description at this link (website forthcoming): https://docs.google.com/document/d/1mRKBT36FhCpWc2jEs-gNwRpzQWZW50B5iKekQr9F27M/edit?usp=sharing.
[25] See Oxfam, International Land Coalition, and Rights and Resources Initiative, Common Ground: Securing Land Rights and Safeguarding the Earth 2016.
[26] See Rights and Resources Initiative and Interlaken Group, Respecting Land and Forest Rights: A Guide for Companies 2015. See also Anna Locke and Joseph Feyertag, Assessing the costs of tenure risks to agribusinesses (Overseas Development Institute 2019), https://odi.org/en/publications/assessing-the-costs-of-tenure-risks-to-agribusinesses/.
[27] "We, at the undersigned law firm, pledge to not take on work to support the fossil fuel industry, now and into the future. We further pledge to take on some work or continue to work in at least one of the following areas: to support renewable energy development, to address climate change, and to advance climate justice." Law Students for Climate Accountability, available at https://www.ls4ca.org/law-firms.
[28] https://www.nysenate.gov/legislation/bills/2019/s6599.
[29] https://www.njleg.state.nj.us/2020/Bills/S0500/232_I1.HTM.
[30] See, for example, Environmental Integrity Project, "New EPA Enforcement Data Show Continued Downward Trend During Trump Administration," January 14, 2021. https://environmentalintegrity.org/news/epa-enforcement-data-downward-trend-during-trump-administration/.
[31] https://echo.epa.gov/facilities/facility-search/results.