Divest Harvard: Climate Justice, Higher Education, and Fossil Fuel Divestment

Matthew Rimmer

The 3rd December 2014 is the Global Divestment Day, highlighting the need for governments, companies, and civil society to divest themselves of coal, oil, and gas investments.

The fossil fuel divestment movement has been a quickfire revolution. A coalition of students, academics, activists, and leaders like Bill McKibben and Naomi Klein have mobilised a decentralised, networked, global movement in respect of ethical investment and climate change. Dozens of schools and universities, cities towns, religious institutions and philanthropic funds have committed to withdrawing their investments in fossil fuel companies. In the field of higher education, Stanford University has been pioneering, with its coal divestment policy. There remain a significant number of hold-outs who have refused to alter their policies. The fossil fuel divestment campaign has moved into a new phase — with climate litigation targeting Harvard University for refusing to engage in ethical investment policies.

The President of Harvard University Drew Faust has refused to support fossil fuel divestment. In an October 2013 letter, the President explained the reasons for her decision: ‘While I share their belief in the importance of addressing climate change, I do not believe, nor do my colleagues on the Corporation, that university divestment from the fossil fuel industry is warranted or wise.’ Faust maintained that the endowment is designed to ‘advance academic aims, not to serve other purposes, however worthy.’ She commented:

We should, moreover, be very wary of steps intended to instrumentalize our endowment in ways that would appear to position the University as a political actor rather than an academic institution. Conceiving of the endowment not as an economic resource, but as a tool to inject the University into the political process or as a lever to exert economic pressure for social purposes, can entail serious risks to the independence of the academic enterprise. The endowment is a resource, not an instrument to impel social or political change.

Drew Faust instead said that Harvard University would consider sustainable investments. She maintained: ‘Harvard has a strong interest in marshaling its academic resources to help meet society’s most important and vexing challenges, and there is no question that climate change must be prominent among them.’

There has been much debate amongst students and staff at Harvard University over this refusal to recognise fossil fuel divestment. There was much controversy over a student getting arrested over protests against the decision of Drew Faust. The Canadian author Margaret Atwood was shocked by the decision, observing ‘any society where arrest is preferable to open dialogue is a scary place.’

The Harvard Climate Justice Coalition

On the 19 November 2014, seven Harvard students — the Harvard Climate Justice Coalition — have brought a legal action against Harvard University to compel it to withdraw its investments from fossil fuel companies. The plaintiffs include the Harvard Climate Justice Coalition; Alice Cherry, a law student; Benjamin Franta, a physics student interested in renewable energy; Sidni Frederick, a student of history and literature; Joseph Hamilton, a law student; Olivia Kivel, a biologist interested in sustainable farming; Talia Rothstein, a student of history and literature; and Kelsey Skaggs, a law student from Alaska interested in climate justice. The Harvard Climate Justice Coalition also bringing the lawsuit as ‘next friend of Plaintiffs Future Generations, individuals not yet born or too young to assert their rights but whose future health, safety, and welfare depends on current efforts to slow the pace of climate change.’

The case of Harvard Climate Justice Coalition v. President and Fellows of Harvard College, is being heard in the Suffolk County Superior Court of Massachusetts. The dispute will be an important precedent on the ongoing policy and legal battles in respect of climate change, education, and fossil fuel divestment.

It is worthwhile outlining the nature of the complaint of the Harvard Climate Justice Coalition. The Harvard Climate Justice Coalition complain that Harvard University is failing to abide by its Charter and the Constitution of the Commonwealth of Massachusetts:

Defendant Harvard Corporation has recognized its obligation as an economic and intellectual leader to respond to climate change. Defendant Harvard Corporation has stated that this leadership extends to its investments, acknowledging the causal connection between its investments and the harms caused by climate change. As of November 14, 2014, the Harvard University endowment contained direct holdings in publicly­traded fossil fuel companies worth at least $79 million and, upon information and belief, additional indirect holdings worth an unknown amount. Upon information and belief, Defendants’ investments help finance fossil fuel companies’ business activities, which include exploration, development, transportation, and the promotion of scientific falsehoods. These activities create greenhouse gas emissions, among other environmental and social harms, and perpetuate worldwide dependence on the burning of fossil fuels for energy.

The group noted that ‘Defendants Harvard Corporation and Harvard Management Company have previously divested from companies whose activities ran counter to the University’s educational mission, recognizing the power of divestment and their obligation to conduct their investment practices in accordance with their duties as nonprofit institutions.’ In particular, the group noted that ‘Divestment from companies doing business inapartheid South Africa and from companies selling tobacco products was crucial in building public opposition to such companies’ activities.’

In the statement of claims, the Harvard Climate Justice Coalition allege, first of all, that there has been a mismanagement of charitable funds. The group argues that ‘Defendant Harvard Corporation’s investment in fossil fuel companies is a breach of its fiduciary and charitable duties as a public charity and nonprofit corporation to uphold the purposes… including its “special obligation and accountability to the future, to the long view needed to anticipate and alter the trajectory and impact of climate change,” because such investments contribute to climate change, the degradation of biological resources, damage to public enjoyment of nature, harm to the public’s prospects for a secure and healthy future, and the efforts of industry to impede any attempts to alter the trajectory and impact of climate change.’ Moreover, the Harvard Climate Justice Coalition maintain that such fossil fuel ‘investments contribute to current and future damage to the University’s reputation and to that of its students and graduates, to the ability of students to study and thrive free from the threat of catastrophic climate change, and to future damage to the university’s physical campus as a result of sea level rise and increased storm activity.’

To support the action, the Harvard Climate Justice Coalition and the individual plaintiffs claim they ‘have a special interest in the management of Defendant Harvard Corporation’s charitable funds, to the extent that the investment of such funds directly affects “the advancement and education of youth” and the maintenance of the university’s physical campus.’

Second, the Harvard Climate Justice Coalition alleged that the Harvard University is engaged in the ‘intentional investment in abnormally dangerous activities.’ The Harvard Climate Justice Coalition explain why it perceived fossil fuel companies’ business activities as ‘abnormally dangerous activities’:

Fossil fuel companies’ business activities are abnormally dangerous because they inevitably contribute to climate change, causing serious harm to Plaintiffs Future Generations’ persons and property … ; because this harm outweighs the value of fossil fuel companies’ business activities by threatening the future habitability of the planet… ; and because this harm is appreciably more serious and more irreparable than that created by comparable industries, making fossil fuel companies’ business activities not a matter of common usage. No amount of reasonable care by fossil fuel companies can substantially reduce the risk of such harm because doing so would require either curtailment of fossil fuel companies’ own business activities or mitigation efforts by other parties that would likely lower demand for fossil fuel companies’ products.

The students maintained: ‘By contributing directly and indirectly to Plaintiff Future Generations’ harm, Defendants’ investments make an appreciable difference to the magnitude of that harm, and any withdrawal of such investments would likely mitigate it.’

In terms of remedies, the Harvard Climate Justice Coalition has sought ‘an injunction ordering Defendants to immediately withdraw Defendant Harvard Corporation’s direct holdings in fossil fuel companies.’ The students have asked for ‘an injunction ordering Defendants to take immediate steps to begin withdrawing indirect holdings and to complete withdrawal within a reasonable period of time to be determined by the court’. The Harvard Climate Justice Coalition has also asked for ‘a declaration that Defendant Harvard Corporation is in breach of the obligations contained in its Charter’, and ‘such other relief as this court deems just.’

Three of the Plaintiffs — Alice Cherry, Joseph Hamilton, and Kelsey Skaggs — discussed the action in The Boston Globe. The group said: ‘As student members of the Harvard Climate Justice Coalition, we’re demanding that our university stop profiting from the destruction of the earth’s climate and that it divest its holdings in gas, oil, and coal companies.’ The Plaintiffs explained the nature of the legal action against Harvard University:

Our legal claims are simple. Harvard is a nonprofit educational institution, chartered in 1650 to promote “the advancement and education of youth.” By financially supporting the most dangerous industrial activities in the history of the planet, the Harvard Corporation is violating commitments under its charter as well as its charitable duty to operate in the public interest. We’re also suing on behalf of future generations. By investing in the extraction of fossil fuels, the Harvard Corporation is actively supporting the destruction of the earth’s atmosphere and the catastrophic consequences that will be visited upon our children and grandchildren. It is our duty to give voice to these coming generations and to hold the Corporation accountable for its reckless and shortsighted behavior.

The students observed: ‘A university that embraces free scholarly inquiry and the promotion of the public good cannot remain honest while doing business with companies that spread scientific falsehoods, lobby against clean energy, and condemn the planet to a compromised future.’ Cherry, Hamilton, and Skaggs commented: ‘By divesting from fossil fuels — as it already has from apartheid, Darfur, and tobacco — Harvard will send a powerful moral message that will catalyze the kind of conscience-driven action needed to reverse our institutional inertia.’ The group worried: ‘So long as our university administration chooses profits over the health of the planet and its people, it will be complicit in the greatest danger ever faced by humankind’. The students argued: ‘Our lawsuit simply aims to bring the Harvard Corporation back to its senses.’

Critics

In response, a Harvard University spokesman, Jeff Neal, commented: ‘We expect that a court will need to consider the legal basis of their complaint.’ He acknowledged that ‘climate change poses a serious threat to our planet’. However, Neal maintained: ‘We agree that threat must be confronted, but sometimes differ on the means.’ He observed that the higher education institution sought to make a contribution to the climate debate through pedagogical means: ‘Harvard has been, and continues to be, focused on supporting the research and teaching that will ultimately create the solutions to this challenge.’

Likewise, the Harvard Crimson has protested that the lawsuit is ‘counterproductive.’ The student college protestor questioned whether the legal argument had merit: ‘This line of reasoning is tenuous and does not contribute to the kind of dialogue necessary for Harvard to better combat climate change.’

Paul M. Barratt — Bloomberg columnist, author of Law of the Jungle, and critic of environmentalists — has also criticised the lawsuit. He has maintained that fossil fuels is not necessarily an unethical investment: ‘What distinguishes fossil fuel is that a great deal of good, as well as long-term danger, flows from the use of coal, oil, and natural gas.’ This position is hard to sustain, given the impact of fossil fuels and climate change upon the economy, the environment, and public health.

The Future of Climate Litigation

Such critics perhaps neglect the rapid expansion of international climate law, policy, and litigation. Mary Robinson has recently emphasized that ‘the legal profession has a critical role to play in strengthening and creating the laws, norms, regulations and policies needed to ensure an effective and equitable response to the climate challenge’. The International Bar Association has released a report on legal remedies in respect of climate change. The report highlights a great deal of black letter law creativity in the area of climate law — with regulator action; public trust litigation; and public nuisance litigation. The dispute in Harvard Climate Justice Coalition v. President and Fellows of Harvard College could be seen as another example of trying to deploy traditional legal doctrines to address questions in respect of climate change.

The action has parallels with the atmospheric trust litigation supported by Professor Mary Christina Wood and the Children’s Trust which is designed to support intergenerational climate justice. Alice Cherry — one of the plaintiffs for the Harvard Climate Justice Coalition - has observed:

Future generations will wonder why we didn’t do more to stop climate change. We have an obligation to do everything we can, and this lawsuit is about living up to that obligation.

She has commented that the lawsuit will have both a practical and a symbolic impact: ‘Whatever the outcome, our lawsuit will likely spend at least a few months in court’. Cherry noted: ‘As Divest Harvard members, we will also continue to ask Faust and the corporation to meet with us publicly, outside of court’. She hoped that the efforts of the students would inspire others: ‘We also hope that students at Harvard and elsewhere will take inspiration from our lawsuit and that they won’t hesitate to stand up for what is right, no matter how powerful or well-funded their opponents.’

The legal action against Harvard University will no doubt be the beginning of a wave of lawsuits, challenging fossil fuel investments by a range of public and private institutions — including universities, schools, religious institutions, charities, philanthropies, and sovereign wealth funds. The outcome of the dispute be closely watched by climate lawyers and policy-makers.

Dr Matthew Rimmer is an Australian Research Council Future Fellow, working on Intellectual Property and Climate Change. He is an associate professor at the ANU College of Law, and an associate director of the Australian Centre for Intellectual Property in Agriculture (ACIPA). He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University, and a PhD (Law) from the University of New South Wales. He is a member of the ANU Climate Change Institute. Dr Rimmer is the author of Digital Copyright and the Consumer Revolution: Hands off my iPod, Intellectual Property and Biotechnology: Biological Inventions, and Intellectual Property and Climate Change: Inventing Clean Technologies. He is an editor of Patent Law and Biological Inventions, Incentives for Global Public Health: Patent Law and Access to Essential Medicines, and Intellectual Property and Emerging Technologies: The New Biology. Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, clean technologies, and traditional knowledge. His work is archived at SSRN Abstracts and Bepress Selected Works.

Matthew Rimmer, ‘Divest Harvard: Climate Justice, Higher Education, and Fossil Fuel Divestment’, Medium, 3 December 2014, https://medium.com/@DrRimmer/divest-harvard-climate-justice-higher-education-and-fossil-fuel-divestment-8f5074af970d