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People protesting the Dakota Access Pipeline march past San Francisco City Hall in 2016.  Photo by Pax Ahimsa Gethen [CC BY-SA 4.0 (https-::creativecommons.org:licenses:by-sa:4.0)].

The attack on climate justice movements

Originally published: National Lawyers Guild by Traci Yoder (March 14, 2019)   | 

In 2018, NLG membership voted to expand our mission statement of “human rights over property interests” to include the rights of ecosystems. This update reflects the Guild’s historical support for environmental justice, and our ongoing dedication to challenging the repression environmental movements experience from both governments and corporations. NLG is part of the Protect Dissent Network (coalition fighting anti-protest legislation) and Protect the Protest (coalition challenging SLAPP suits against environmental activists). —NLG editors

Recent developments make clear there is little time left before the effects of environmental destruction threaten the survival of most humans, animals, and ecosystems. A 2018 report by the UN Intergovernmental Panel on Climate Change (IPCC) warns that we have only 12 years before the devastating impacts of climate change become reality. As conditions worsen worldwide due to rising temperatures and extreme weather events, additional consequences include climate refugees, disputes over resources, deteriorating infrastructure, new health concerns, and challenges to food production and distribution. Moreover, those most affected by toxic pollution and climate change are often people of color in politically marginalized communities who have contributed the least to the current environmental crisis.

As the dangers of planetary destruction become increasingly dire, there is a corresponding growth in the strength, coordination, and urgency of movements for environmental justice and sustainability. Coalitions of activist groups, nonprofit organizations, progressive politicians, and communities are striving to reverse the disastrous consequences of overconsumption, pollution, and fossil fuel extraction. However, the visibility and success of environmental movements has led to attempts to criminalize activists and discredit the goals of ecological campaigns. Legislation raising penalties for environmental activism, surveillance of environmental campaigns, attempts to label activists “terrorists,” and reports designed to undermine the legitimacy of environmental advocacy are all strategies used by the U.S. government, private security operations, fossil fuel companies, corporate foundations, and conservative think tanks.

The IPCC report authors point to the complete transformation of the world economy within the next few years as the only hope for a sustainable future, placing the aims of environmentalism in direct opposition to the continuation of capitalism as the dominant global economic system. The role of law in this conflict is complex, with legal strategies being deployed on all sides to further very different aims. While environmental activists support model legislation, invoke the necessity defense in court, and demand injunctions on ecologically dangerous projects, the Trump administration, private companies, and law enforcement agencies are criminalizing environmental activism, harassing individual activists and organizations through frivolous lawsuits, and preparing for military-level interventions. The stage is set for a showdown between environmental movements determined to make the planet livable for future generations and a small but powerful group of right-wing politicians and corporate leaders determined to profit at any cost. The fate of the world is literally at stake in these struggles.

Capitalism vs. the Environment

The current conflict can be traced back to the 1960s, when a rise in environmental consciousness led to the establishment of the Environmental Protection Agency, criticisms of the role of corporations in causing environmental pollution, and new regulations to curb the excesses of business practices damaging to the environment. For a brief time, there appeared to be growing consensus in many countries that environmental protection was an important priority. However, throughout the 1970s, corporate leaders began organizing to constrain the increasing influence of environmental (and labor) movements. Putting aside competitive rivalries, the American business elite turned to the political sphere and invested enormous amounts of money to overturn or weaken most of the environmental advancements made during the 1960s and 1970s.

In the 1980s, the U.S. government backtracked on environmental protections, guided by the logic of neoliberal free-market policies prioritizing corporate profits and individual consumption. Promising to remove obstacles to economic growth, Reagan decimated environmental regulations. As a result, environmental disasters proliferated (e.g. Three Mile Island, Love Canal, and the Exxon Valdez oil spill). While corporations and conservative politicians were successful in halting new environmental regulations, public concern again began to grow in reaction to scientific reports on ozone depletion and global warming. Alarming accounts of rising temperatures led to the creation of the Intergovernmental Panel on Climate Change by 1988 and multiple global environmental treaties in the late 1980s and 1990s. Despite these scientific discoveries, Republican lawmakers and business leaders doubled down on their anti-regulatory position. Using new public relations techniques, emerging technologies, and the power of lobbyists, anti-environmentalists continued framing pollution and global warming as the responsibility of individual consumers instead of a problem requiring government or collective action.

Throughout the 1990s, multinational corporations increasingly relocated to countries and free trade zones where environmental considerations would not affect their profit margin. These conditions eventually contributed to the massive anti-globalization protests which took place across the world from 1999-2003, in which environmental and labor activism intersected to critique the neoliberal policies of international trade organizations. The power and visibility of these protests—combined with increased public attention to radical direct action groups like Earth Liberation Front and Animal Liberation Front—led to heightened anti-environmental backlash in the form of a “green scare.” By the late 1990s, the U.S. government was holding hearings on environmental “terrorism” and in 2004, multiple environmental and animal activist investigations were combined in “Operation Backfire,” with the FBI citing “eco-terrorism” as the “number one domestic terrorism threat.” The corporate-backed American Legislative Exchange Council (ALEC) introduced model legislation in multiple states based on the federal Animal and Ecological Terrorism Act (AETA), creating harsh penalties for environmental and animal rights activists. These nonviolent movements were subjected to constant surveillance, infiltration, harassment, entrapment, and arrest by law enforcement. As a result, environmental and animal rights movements were considerably weakened for the following decade.

In recent years, the most confrontational environmental campaigns are focused on the catastrophic consequences of fossil fuel projects such as oil pipelines, hydraulic fracturing for natural gas, and mountaintop coal removal. Starting in 2008, environmentalists joined Indigenous activists to resist the construction of the controversial Keystone XL pipeline designed to bring crude oil from Canada to Texas. In 2016, the occupation at Standing Rock against the Dakota Access Pipeline brought environmental protests into the public eye and the mainstream media. Tying together resistance to fossil fuels, Indigenous rights and sovereignty, critiques of corporate greed, and the power of long-term demonstrations, Standing Rock became a rallying point for the environmental movement as well as a target for law enforcement, corporate executives, and conservative politicians. Since then, movements against fossil fuel extraction have proliferated amidst an atmosphere of harassment, surveillance, and criminalization.

Attacks on Environmental Activism

Numerous controversial projects are in the works in addition to Keystone XL and Dakota Access pipelines, including the Bayou Bridge portion of the DAPL pipeline in Louisiana, the Mountain Valley pipeline in West Virginia, and the Line 3 pipeline in Minnesota. The companies profiting from these projects—Energy Transfer (ET), Enbridge, and Transcanada—are working with police and conservative lawmakers to crush opposition to their plans. Reports show that law enforcement and private security companies are already secretly preparing a militarized response to upcoming pipeline protests. FOIA requests have produced evidence of recent surveillance of environmental groups and the creation of a task force stockpiling equipment and training police to counter future pipeline demonstrations. Fusion centers—originally established for counter-terrorism purposes—have been increasingly monitoring environmental movements in coordination with local and state police. Environmental activists are regularly designated “eco-terrorists” and “environmental rights extremists” by law enforcement agencies.

A corresponding strategy to criminalize activists and repress environmental movements against fossil fuels comes in the form of state legislation aimed at the protection of “critical infrastructure.” These bills not only increase penalties for anyone protesting at a fossil fuel facility, but also punish organizations that support protesters by holding them “vicariously liable” for damage undertaken by individuals. Critical infrastructure bills have been introduced 18 times in 12 states since 2017, and are currently under consideration in eight. ALEC and the Council of State Governments have drafted model versions of these bills, and both receive funding from the oil and gas industry. Greenpeace USA documented how private oil and gas companies have advocated, lobbied, and financially supported critical infrastructure legislation to further their own economic interests. The designation “critical infrastructure” also opens the path for fossil fuel companies to use eminent domain arguments to expropriate private land for their projects. Corporate-sponsored critical infrastructure bills are part of a broader wave of anti-protest legislation introduced in state legislatures since the end of 2016.

Another method corporations use to harass and overwhelm environmental activists are “Strategic Lawsuits Against Public Participation (SLAPP),” which are designed to silence critics of a business’s practices by tying them up in costly and lengthy civil suits. SLAPP suits have been deployed by private companies to silence environmental activism, using defamation, trespassing, and racketeering charges to punish individuals and organizations who bring attention to environmentally destructive practices. SLAPP suits do not need to win to be successful. Rather, the time and cost of litigation can take a toll on defendants, and end in settlements in which critics agree to no longer speak out. In a recent landmark ruling, a federal judge threw out a “baseless” lawsuit brought by Energy Transfer against Greenpeace and other environmental and Indigenous activists who took part in protests at Standing Rock. Within a week, however, ET filed a new lawsuit in state court against many of the same organizations for millions of dollars.

Conservative think tanks and pro-business organizations support these legal strategies by discrediting the ideological basis of climate action movements. One well known tactic has been to deny the science behind climate change, thereby delaying and confusing efforts to address these trends. Opponents of environmental movements also focus on the monetary loss of failed fossil fuel projects to attack ecological campaigns. A recent Chamber of Commerce report titled “Infrastructure Lost: Why America Cannot Afford to ‘Keep It In the Ground’” laments the potential $91.9 billion in economic activity not earned because of environmental protests that led to delays and cancellations of fossil fuel projects. The authors accuse what they call “anti-energy groups” of being short-sighted and harmful “to families, consumers, and American workers.” By casting environmental activists as villains, the COC argues that lost profit is the true tragedy—despite the fact that even with the delays caused by protests, the U.S. remains the world’s largest producer of crude oil and natural gas.

Legal Strategies for Environmental Justice

Despite attempts to silence, harass, surveil, and criminalize activists, environmental movements continue to grow. While conservative politicians, large corporations, right-wing think tanks, and private security firms are collaborating to stop climate change action, activists are also using a combination of legal strategies, direct action, and grassroots organizing to achieve their aims. Campaigns like Keep It In the Ground have successfully delayed and in some cases completely halted environmentally harmful fossil fuel projects by mobilizing protests, lawsuits, and legislation. Environmental movements have honed the ability to block dangerous projects using legal and regulatory methods such as requesting injunctions, challenging permits, and demanding environmental reviews. Another recent strategy involves bestowing legal rights to natural formations, such as a groundbreaking 2019 referendum in Ohio which would allow citizens to sue polluters on behalf of Lake Erie.

For the water protectors at Standing Rock and others fighting against fossil fuel extraction, direct action has provided a way to immediately halt projects as well as bring public attention to the environmental damage of oil and gas extraction and transport. From tree-sitting in Virginia to lockdowns in Louisiana to valve-turners in Minnesota, activists are putting themselves on the line. Environmental activists and their attorneys are also increasingly pushing for the necessity defense in court, in which acts of civil disobedience are justified to prevent the occurrence of a more serious harm. Environmental movements are introducing the necessity defense to argue that direct action is required to prevent further environmental damage and the end of the habitability of the planet. While environmentalists have invoked the necessity defense in environmental cases since the 1970s, judges have often been hesitant to allow it in court. However, in 2018, judges in Massachusetts and Minnesota acquitted pipeline protesters in trials in which defendants presented the necessity defense as a justification for organized resistance.

Cities and other municipalities are also joining the movement for environmental sustainability, bringing lawsuits against oil and gas companies for the central role played by the fossil fuel industry in climate change. At least nine cities have brought such lawsuits over the past few years, seeking compensation for the costs accrued from environmental damage. Additionally, New York and Massachusetts launched investigations into Exxon when it was disclosed in 2015 that the company was aware of the consequences of climate change and spent millions to cover up this information. Also in 2015, a group of 21 youth brought the climate lawsuit Juliana v. United States, claiming that the federal government violated the constitutional rights of youth as well as its responsibility to protect essential public trust resources. In February 2019, the Juliana plaintiffs filed a motion to halt approvals of new fossil fuel infrastructure and to stop the federal government from leasing land and offshore areas to oil, coal, and gas companies. The youth-led climate group Zero Point filed an amicus brief in support of the Juliana lawsuit, signed by nearly 30,000 young people from 144 countries.

Building on the work of longtime grassroots climate activists, progressive politicians have recently introduced a new legislative framework under the Green New Deal, calling for drastic measures to reduce carbon emissions, create green jobs, and stimulate the economy. The ultimate goal of this non-binding legislation is to eliminate the use of fossil fuels and transition away from using nuclear energy, while also paying attention to those marginalized groups who will be most affected by major structural changes. While the current version is unlikely to pass a Republican-dominated Senate, the ideas contained in the Green New Deal are already becoming talking points for presidential candidates and could prove to be important for voters in the next election. The proposed legislation also provides a template for cities and states that want to take on climate-related policy change immediately.

Future of the Environment

It is daunting to contemplate the impending consequences of climate change as well as the sheer enormity of the social, economic, political, and ecological changes needed to prevent further devastation. Many prefer to remain in denial or disavowal, clinging to unfounded claims that climate change is fake or wishing for miracle solutions like geoengineering. However, this kind of avoidance is a form of privilege—those who are most affected by environmental destruction cannot pretend the problem does not exist. Poor people and people of color have experienced the heaviest burden through exposure to toxic pollution in their communities, and Indigenous struggles to protect their land and water are a reminder that climate change and environmental destruction are part of a much longer history of colonialism and genocide. We cannot forget that the people of Flint continue to live without access to clean water and water protectors are still fighting ongoing pipeline projects that are endangering their homes and lives.

Fortunately, the youngest generations are beginning to confront the realities of climate change. As seen in the Juliana case, youth are organizing to force governments and international organizations to face the situation. In Europe, tens of thousands of young people are already going on strike from school to demand action on climate change. In the U.S., groups like the Sunrise Movement are confronting politicians to force a conversation about legislation such as the Green New Deal. More and more environmental activists are invoking the language of the necessity defense—in order to save the planet for future generations, direct and potentially illegal action will be required because the current legal system is designed to facilitate a free-market fundamentalism that is not compatible with environmental sustainability. Movement lawyers and legal workers can and should continue to introduce the necessity defense whenever feasible, and to educate the public on the power of this strategy. We also need to fight narratives linking environmental activism and support for principled civil disobedience with “terrorism” and “extremism.” The real “eco-terrorism” is what is being done to our planet and the most vulnerable populations by a global elite obsessed with personal gain at any cost.

Strikes, demonstrations, direct action, and robust legal strategies are necessary because politicians are unlikely to enact needed changes without intense and unrelenting pressure. While scientific reports indicate the only option for planetary survival is the immediate replacement of fossil fuels with renewable energies, the Trump administration has pledged to do exactly the opposite. Trump has actively decimated environmental regulations through his executive powers, pulled the U.S. out of the Paris Climate Agreement, and is currently re-shaping the federal judiciary with judges who will support a neoliberal capitalist agenda over environmental concerns. Conservative lawmakers, corporate executives, and law enforcement agencies are collaborating to criminalize, penalize, and stigmatize environmental movements using legislation, lawsuits, and misinformation. Neoliberal politicians and economic elites will do everything in their power to stop climate change action, for the simple reason that the logic of capitalism will always be incompatible with environmental sustainability.


Related:

2/15/18: Conservative-led Anti-Protest Legislation Already Doubled Since Last Year

12/13/17: The Dangers of Deregulation Under Trump and Pence

11/27/17: #COINTELPRO: Disrupting Resistance Movements in the Digital Age

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