License to Drill: How Government and the Courts Are Misapplying the Law to Protect the Fossil Fuel Industry
By Alice Cherry and Ted Hamilton
As the climate crisis rapidly worsens, a contradiction is emerging: we know how to transition away from fossil fuels, but public institutions and corporate leaders aren’t doing it. The Trump administration’s staggering record of regressive climate policy looks worse still following last month’s revelations of active collaboration between oil companies and the Department of Justice. Exxon, Chevron, and Chase recently rejected shareholder proposals that the companies disclose climate risks. Government leaders in other countries, notably Australia and Brazil, have sought to block implementation of global climate policies, and most major countries are on track to miss their commitments under the 2015 Paris Agreement (which itself is too weak to stave off disaster).
With many powerful decision makers refusing to take the climate crisis seriously, some progressives have vested hope in the courts. In recent years, government and corporate intransigence on climate, and Trump’s policies in particular, have been met with a slew of legal challenges, including the youth lawsuit against the U.S. government, New York’s investor fraud lawsuit against Exxon, and municipal and state tort suits against fossil fuel producers. On climate as on other issues, the judiciary has often been the face of resistance to Trumpism. Internationally, the high-water mark for climate legal action is the Dutch Supreme Court’s Urgenda decision finding that the Netherlands has a human rights obligation to cut its greenhouse gas emissions.
But the legal system — courts, prosecutors, and laws on the books — is not the environmental savior we might imagine it to be. If we are serious about addressing the climate crisis, we need to move beyond a naïve conception of law as a neutral arbiter of disputes and understand law for what it is: a field of conflict tilted in favor of the fossil fuel industry.
Here are five broad categories of laws that courts and governments routinely misapply, enforce selectively, or ignore altogether in their frenzy to allow fossil fuel companies to extract and transport oil, gas, and coal — and force communities to bear the cost.
1. Indigenous Rights
Federal treaties between the government and Indigenous tribes, as well as the American Declaration on the Rights of Indigenous Peoples, protect Indigenous self-determination and the right to sustainably manage lands. Similar principles have been enacted in other countries and are now a well-accepted part of international law. But the continued growth of fossil fuel infrastructure frequently comes into conflict with these rights, as lands are taken without consent and communities’ health, culture, and liberty suffer as a consequence. Governments and courts have ignored these human rights principles in their active subsidization and permitting of fossil fuel expansion.
2. Public Trust
The public trust doctrine is an ancient legal principle that creates a governmental duty to protect environmental resources held in common by the people, such as lakes and rivers. Although recent lawsuits have made progress in arguing that the atmosphere is a common resource under the public trust doctrine, federal and state governments have largely sidestepped their duties to prevent environmental harms from fossil fuel extraction, transport, and combustion.
3. Constitutional Law
The Fifth and Fourteenth Amendments to the U.S. Constitution require the federal and state governments to protect individuals against arbitrary deprivation of their lives, liberty, and property, to ensure equal protection of the laws, and to protect fundamental rights. The fossil fuel system — which enjoys massive government subsidies and depends upon public permits and licensing — is difficult to reconcile with these duties, particularly in light of the mounting health and safety risks of climate disruption and the disproportionate burdens borne by future generations, the poor, people of color, Indigenous peoples, and women. In spite of this, a federal court of appeals recently dismissed a lawsuit that sought to hold the federal government accountable for violating the constitutional rights of young people.
4. Property Law
Property law protects the rights of property owners and governs their relations with others. In the U.S. and many other countries, property law has long been used to grant drilling licenses to fossil fuel corporations, and to charge protesters with trespass and other crimes (recent anti-protest legislation has exacerbated this trend). By contrast, our legal system has frequently disregarded the property rights of Indigenous peoples who have objected to fossil fuel projects on their land. Courts, legislatures, and agencies have also given fossil fuel companies near-free rein to seize private land that lies in the path of pipeline projects.
5. Community Self-Determination
The U.S. Declaration of Independence and the Ninth Amendment provide for the right of local governments and communities to self-determination. Included within this right is the right of communities to restrict dangerous or polluting activities within their boundaries. By permitting fossil fuel extraction and transport over the objection of communities affected by them, and by allowing climate disruption to continue unabated, governments and courts have turned these laws and principles on their head.
As these examples illustrate, the struggle for climate justice is not a simple matter of defending what’s legal and defeating what’s illegal. Prosecutors, courts, and lawmakers are favoring one side of the fight over another, and finding reasons in the law to do so.
So how can we make the law work for us? We need climate-friendly lawyers, of course. More importantly, though, we need protesters and community organizers. History has shown that social movements can change how courts interpret and apply laws. As modes of resistance, law and social movements are linked, not only because legal battles are political but because climate protesters arrested for nonviolent civil disobedience are increasingly arguing that their actions are legally justified. If the list above is any indication, there is ample legal basis for resisting the fossil fuel system — and, in the end, the movement for climate justice will need to change laws as much as hearts and minds.
As powerful climate protests around the world have shown, there is no need to sit on our hands while Trump and others like him destroy the planet. We already have the legal tools and the moral authority we need to realize our vision. We even have detailed policy proposals, as last year’s unveiling of Green New Deal legislation demonstrated.
It is up to us to force our elected leaders to reckon with the climate crisis, and as Rebecca Solnit writes, “[e]very [protest] action shifts the world’s balance.” For our own sake and that of future generations, we need to shift that balance before it’s too late.
Alice Cherry and Ted Hamilton are staff attorneys at Climate Defense Project, a legal nonprofit that advises and supports the climate movement.