Plausibly Impossible

"But whoso shall offend one of these little ones it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea."

  Jonathan Gottschall, author of The Storytelling Animal: How Stories Make Us Human, tells how E.O. Wilson, who became through his studies of ants one of the greatest biologists of our time, picked a fight with Richard Dawkins, author of The Selfish Gene. Gottschall wrote:

In the late 1960s and early 1970s evolutionary biologists celebrated a fundamental breakthrough. William Hamilton’s inclusive fitness theory (aka selfish gene theory) indicated that organisms are narrowly “designed” to spread copies of their own genes, whether those genes are located in their own bodies or in the bodies of their relatives. Hamilton’s work seemed to show exactly how evolution worked, and also how it didn’t work. Group selection — the idea that competition between groups of organisms shapes genomes — was declared dead. In effect, this defined altruism — real and authentic selflessness — out of existence. On a planet ruled by selfish genes, “altruism” was just masked selfishness. The biologist Michael Ghiselin expressed this beautifully, “Scratch an altruist and watch a hypocrite bleed.”

Dawkins said the big 1960s breakthrough was simply this: selfish genes beat selfless genes; they beat them bloody; they beat them every single time. But Wilson knew better. Incredible levels of cooperation and altruism within ant colonies testify to millions of years of vicious conflict between colonies being resolved in favor of the selfless gene.

Gottschall:

Other factors held equal, who wins: the tribe of self-sacrificing altruists or the tribe where every warrior is looking out for number one? Won’t it be the Selfless People? Won’t the Selfless People tend to dominate selfish tribes in most competitive situations? And, as a result, won’t selfless genes proliferate?

Charles Darwin thought so. In The Descent of Man, Darwin ran his own thought experiment, pitting selfless against selfish tribes:

It must not be forgotten that although a high standard of morality gives but a slight or no advantage to each individual man and his children over the other men of the same tribe, yet that an advancement in the standard of morality and an increase in the number of well-endowed men will certainly give an immense advantage to one tribe over another. There can be no doubt that a tribe including many members who, from possessing in a high degree the spirit of patriotism, fidelity, obedience, courage, and sympathy, were always ready to give aid to each other and to sacrifice themselves for the common good, would be victorious over other tribes; and this would be natural selection.

Most children pass through a phase in life during which their selfish gene is particularly strong. If they are fortunate, this occurs in their pre-teen or teenage years, when they are setting a course for the arc of a life’s profession. They want to become policemen, firemen, doctors, nurses, investigative journalists or explorers.

We recall that when we were 11 or 12 our parents took us to the FBI firing range in the basement of the old Justice Department on Pennsylvania Avenue. We got to see a “tommy gun” shooting up a profile target and we were given that target to take home and proudly display on the wall opposite our bed. We wanted to be a G-Man like Efrem Zimbalist Jr.

Fortunately, by the time we were old enough to apply, Hoover’s FBI had already become complicit in, if not actively orchestrating, the JFK Assassination and was forever thereafter embedded within the dark money cabal that dominates the Western political chessboard.

Nonetheless, by age 17 we had fixed upon law school, led in part by reading the writings of Mohandas Gandhi, and then, in 1964, Gideon’s Trumpet  by Anthony Lewis, and in other part by hero-worship of Supreme Court Justice William O. Douglas. Eventually — though by then the possibility of shaping society with liberal court decrees had been retired with Camelot — we led a 20-year career in Quixotic environmental and human rights appellate litigation. Such is the karma of 17-year-old fixations.

It should therefore come as no surprise when, to this old firehorse, the case of Kelsey Cascadia Rose Juliana, Xiuhtezcatl Tonatiuh M. et al. versus The United States of America and Barack Obama, et al, sounded like the knell of a firebell. We reveled in that long-discredited strategy — litigating for social change — poking its nose back into a US District Court in Oregon (Eugene Division Case no.: 6:15-cv-01517-TC).

Kelsey Juliana and twenty other Oregon youths aged 8 to 19 had the temerity to ask the Court to require the President to produce a plan to rapidly reduce carbon emissions. They demanded that the plan reduce emissions at the 6-percent-per-year rate that climate science requires in order to get atmospheric CO2  back to a level of 350 ppm. The complaint also requests that the administration prepare a consumption-based inventory of national CO2 emissions. Pope Francis filed an amicus brief in support of the kids' case.

The constitutional law theories of the case are these: 

Fifth Amendment Due Process Clause: The federal government has violated the defendants’ substantive due process by allowing atmospheric CO2 levels to reach levels that endanger the lives, liberty, and property of the youth defendants and future generations.

Fifth Amendment Equal Protection: The federal government has denied plaintiffs and future generations the same protection of fundamental rights afforded to prior and present generations of adult citizens. In particular, Section 201 of the 1992 Energy Policy Act is unconstitutional due to its mandatory authorization for export and import of natural gas (which “discriminates against Plaintiffs by exacerbating already-dangerous levels of atmospheric CO2… the consequences of which will be irreversible and catastrophic in Plaintiffs’ lifetimes”). Moreover, because climate change poses a “grave and continuing harm to children,” the plaintiffs should be treated as a protected class and the court should apply strict scrutiny when reviewing the Equal Protection claim.

Unenumerated Rights Preserved by the Ninth Amendment: The “right to be sustained by our country’s vital natural systems, including our climate system” is one of the “implicit liberties protected from government intrusion by the Ninth Amendment.” Federal defendants have violated this right by contributing to dangerous levels of atmospheric and oceanic CO2 and a destabilized climate system.

The Public Trust Doctrine: Plaintiffs are “beneficiaries of rights under the public trust doctrine, rights that are secured by the Ninth Amendment and embodied in the reserved powers doctrines of the Tenth Amendment and the Vesting, Nobility, and Posterity Clauses of the Constitution.” Federal defendants have violated their public trustee obligations by contributing to the destruction of the climate system—a vital natural resource for present and future generations.

At a hearing in Eugene Oregon on 9 March 2016, Mr. Obama and his three closest friends, the Petroleum Institute, National Association of Manufacturers, and the American Fuels and Petrochemical Association, asked the Court to dismiss the case, in part based on the argument that the requested rate of fossil fuel emissions reduction was implausible.

A clearer battle between good and evil has not been witnessed since Charlie Daniels met Ba‘al Zebûb, at the Crossroads.

US Magistrate Coffin said that he was “troubled” by the severity of the requested emissions reduction rate, but had to admit that some of the alleged climate change consequences, if accurate, could be considered “beyond the pale.”

A threshold issue raised by Barry and the Gang of Three was whether the 21 plaintiffs, all minors, have standing to bring the suit. To demonstrate federal standing, plaintiffs must show that they have suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the challenged action, and that it is likely — as opposed to merely speculative — that a favorable court decision can redress the injury.

Nikita Perumal and Jessica Wentz, writing for Climate Law Blog explain:

The “particularized injury” requirement is one potential barrier to lawsuits alleging injuries from climate change and other widespread environmental harms. The Supreme Court has held that, to satisfy this requirement, plaintiffs must show that they are injured in a “personal and individual way and that they seek relief that will “directly and tangibly” benefit them in a manner distinct from its impact on “the public at large.”

A second threshold issue is whether plaintiffs have raised a non-justiciable political question. Unfortunately for them, the neo-cons wrecked that loophole in 2011 when they challenged EPA attempts to regulate greenhouse gas (GHG) emissions in American Electric Power v. Connecticut. The Second Circuit addressed the political question argument in depth and concluded it would not bar review of the challenge brought by utilities. The Supreme Court backed the utilities and upheld the right to go after the EPA for regulating carbon. That effectively poisoned the political-question defense when applied to climate change, at least for now. Justice Scalia just rolled over in his grave.

Less than a month after the hearing, Magistrate Coffin ruled that the lawsuit could move forward. He wrote:

"The intractability of the [climate change] debates before Congress and state legislatures and the alleged valuing of short-term economic interest despite the cost to human life necessitates a need for the courts to evaluate the constitutional parameters of the action or inaction taken by the government. This is especially true when such harms have an alleged disparate impact on a discrete class of society [children]."

In a separate case last November, a judge in Washington ruled that the state's Department of Ecology has a "mandatory duty" to protect the air quality for future generations. On appeal, Zoe & Stella Frazier v. Washington Department of Ecology won at the State Supreme Court and Washington’s Department of Ecology was ordered to reconsider its denial of a petition for GHG rulemaking in light of the best available scientific evidence on climate change. And in May, after hearing a case brought by four teenagers, the Massachusetts Supreme Judicial Court ordered the state to follow through on its greenhouse gas reduction pledges.

Internationally, in June 2015 the Hague District Court ordered the Dutch government to further curb its GHG emissions beyond previously pledged targets, citing the European Convention on Human Rights, the Dutch Constitution, and principles of fairness, “no harm,” and hazardous negligence. A similar suit has been filed in Belgium and another is expected in Norway. Unlike in the U.S., the constitutions in the Netherlands, Norway, and Belgium include either a governmental mandate to protect the environment or an individual right to a clean environment.

 “But whoso shall offend one of these little ones it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea.” (Matt. 18:1–6.)

The federal case will go to trial in early 2017. When it does, the 21 plaintiffs will present evidence that, as early as 1965, Lyndon Johnson was warned that greenhouse gas emissions would lead to "apocalyptic" and "catastrophic" change. They'll also argue that the White House and government agencies colluded with the fossil fuel industry to suppress such warnings from the public and Congress.

The sole remaining argument that the defendants are huddling around is impossibility. They say that the possibility of achieving the scale of emission reductions needed to stabilize climate is  “implausible.”

We find ourselves oddly in agreement.

In his supporting documents for the plaintiffs, climate scientist emeritus James Hansen calls the requirement to return Earth to the Holocene climate at this point in time “possibly implausible.” In his most recent climate science review paper  he mentions “plausibility” seven times.

We find Hansen’s description of our escape route a little harsh. We would rephrase it as “plausibly impossible.”

The climate research community is well aware of the urgent need to reduce emissions, Hansen writes, and...

 ... also realizes that the goal to keep global warming less than 1.5°C probably requires negative net CO2 emissions later this century if high global emissions continue in the near-term (Fuss et al 2014; Anderson 2015; Rogelj et al 2016; Sanderson et al 2016). The Intergovernmental Panel on Climate Change (IPCC) reports (IPCC 2013, 2014) do not address environmental and ecological feasibility and impacts of large-scale CO2 removal, but recent studies (Smith et al 2016; Williamson 2016) are taking up this crucial issue and raising the question of whether large-scale negative emissions are even feasible.

* * * 

Our aim is to contribute to understanding of the threshold-required rate of CO2 emissions reduction via an approach that is transparent to non-scientists. We consider the potential for reductions of non-CO2 GHGs to minimize the human-made climate forcing, the potential for improved agricultural practices to store more soil carbon, and the potential drawdown of atmospheric CO2 from reforestation and afforestation. Quantitative examination reveals the merits of these actions to ameliorate demands on fossil fuel CO2 emission phasedown, but also the limitations, thus clarifying the urgency of government actions to rapidly advance the transition to carbon-free energies to meet the climate stabilization targets they have set. 

After 23 pages of detailed analysis, Hansen et al conclude:

If rapid emission reductions are initiated soon, it is still possible that at least a large fraction of required CO2 extraction can be achieved via relatively natural agricultural and forestry practices with other benefits. On the other hand, if large fossil fuel emissions are allowed to continue, the scale and cost of industrial CO2 extraction, occurring in conjunction with a deteriorating climate with growing economic effects, may become unmanageable. Simply put, the burden placed on young people and future generations may become too heavy to bear.

And that, thanks to the selfless gene of one Federal Magistrate, is a justiciable claim.