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Brecher writes: "Faced with the failure of conventional lobbying, the climate protection movement is now turning to mass civil disobedience - but we can take it further still."

Protecting our climate requires more than lobbying and more than 'civil disobedience.' (photo: Ben Schumin/Flickr)
Protecting our climate requires more than lobbying and more than 'civil disobedience.' (photo: Ben Schumin/Flickr)

Climate Protection: The New Insurgency

By Jeremy Brecher, Foreign Policy In Focus

18 December 13


Faced with the failure of conventional lobbying, the climate protection movement is now turning to mass civil disobedience-but we can take it further still.

hen 30 climate protestors from 18 countries protested drilling at an Arctic oil platform operated by Gazprom, they represented the people of the world taking a symbolic stand against climate destruction, the corporate climate destroyers, and the governments that back them. But the action of the Arctic 30 may be prophetic of something more: The emergence of a global insurgency that challenges the very legitimacy of those who are destroying our planet.

The 2013 Fifth Report of the Intergovernmental Panel on Climate Change confirmed that humans are destroying the earth's climate. But it also revealed something even more alarming: Twenty-five years of human effort to protect the climate have failed even to slow the forces that are destroying it. On the contrary, the rate of increase in carbon emissions from burning fossil fuels tripled between the release of the first IPCC report in 1988 and today.

Scientists and climate protection advocates once expected that rational leaders and institutions would respond appropriately to the common threat of climate change. As Bill McKibben said of Jim Hansen and himself, "I think he thought, as did I, if we get this set of facts out in front of everybody, they're so powerful - overwhelming - that people will do what needs to be done."

It didn't work. Those who are fighting to save the climate need a new strategy. One such strategy to consider is a global nonviolent law-enforcing insurgency.

A Nonviolent Insurgency

Insurgencies are social movements, but movements of a special type: They reject current rulers' claims to legitimate authority. Insurgencies often develop from movements that initially make no direct challenge to established authority but eventually conclude that one is necessary to realize their objectives. To effectively protect the earth's climate and our species' future, the climate protection movement may have to become such an insurgency.

The term "insurgency" is generally associated with an armed rebellion against an established government. Its aim may be to overthrow the existing government, but it may also aim to change it or simply to protect people against it. Whatever its means and ends, the hallmark of such an insurgency is to deny the legitimacy of established state authority and to assert the legitimacy of its own actions.

A nonviolent insurgency pursues similar objectives by different means. Like an armed insurgency, it does not accept the limits on its action imposed by the powers-that-be. But unlike an armed insurgency, it eschews violence and instead expresses power by mobilizing people for various forms of nonviolent mass action.

After closely following the massive strikes, general strikes, street battles, peasant revolts, and military mutinies of the Russian Revolution of 1905 that forced the czar to grant a constitution, Mohandas (not yet dubbed "Mahatma") Gandhi concluded, "Even the most powerful cannot rule without the cooperation of the ruled." Shortly thereafter he launched his first civil disobedience campaign, proclaiming "We too can resort to the Russian remedy against tyranny."

The powers responsible for climate change could not rule for a day without the acquiescence of those whose lives and future they are destroying. They are only able to continue their destructive course because others enable or acquiesce in it. It is the ordinary activity of people - going to work, paying taxes, buying products, obeying government officials, staying off private property - that continually re-creates the power of the powerful. A nonviolent climate insurgency can be powerful if it withdraws that cooperation from the powers-that-be.

Why a Law-enforcing Insurgency?

Faced with the failure of conventional lobbying and political "pressure group" activity, much of the climate protection movement is now turning to mass civil disobedience, as witnessed by the campaigns against the Keystone XL pipeline, mountaintop removal coal mining, coal-fired power plants, and Arctic oil drilling. Such civil disobedience, while generally recognizing the legitimacy of the law, refuses to obey it in specific instances.

Civil disobedience represents moral protest, but it does not in itself challenge the legal validity of the government or other institutions against which it is directed. Rather, it claims that the obligation to oppose their immoral actions - whether discriminating against a class of people or conducting an immoral war or destroying the climate - is more binding on individuals than the normal duty to obey the law.

A law-enforcing insurgency goes a step further. It declares a set of laws and policies themselves illegal and sets out to establish law through nonviolent self-help. Such insurgents view those who they are disobeying as merely persons claiming to represent legitimate authority - but who are themselves violating the law under what's known as "color of law," or the false pretense of authority. So "civil disobedience" is actually obedience to law and a form of law enforcement.

Social movements that engage in civil disobedience often draw strength from the claim that their actions are not only moral, but that they represent an effort to enforce fundamental legal and constitutional principles flouted by the authorities they are disobeying. And they strengthen a movement's appeal to the public by presenting its action not as wanton law breaking but as an effort to rectify governments and institutions that are themselves in violation of the law.

For the civil rights movement, the constitution's guarantee of equal rights meant that sit-inners and freedom riders were not criminals but rather upholders of constitutional law. For the struggle against apartheid, racism was a violation of internationally guaranteed human rights. For war resisters from Vietnam to Iraq, the national and international laws forbidding war crimes defined civil disobedience not as interference with legal, democratic governments but rather as a legal obligation of citizens. For the activists of Solidarity, the nonviolent revolution that overthrew Communism in Poland was not criminal sedition but an effort to implement the international human and labor rights law ratified by their own government.

These examples seem paradoxical. On the one hand, the movement participants appear to be resisting the constituted law and the officials charged with implementing it. On the other, they are claiming to act on the basis of law - in fact to be implementing the law themselves against the opposition of lawless states.

Law professor and historian James Gray Pope has developed a concept of "constitutional insurgency" to understand such cases. A constitutional insurgency, or what might be called a "law-enforcing insurgency," is a social movement that rejects current constitutional doctrine but that "rather than repudiating the Constitution altogether, draws on it for inspiration and justification." Pope detailed how the American labor movement long insisted that the right to strike was protected by the 13th amendment to the constitution, which forbade any form of "involuntary servitude." Injunctions to limit strikes were therefore unconstitutional. Although courts disregarded this claim, the radical Industrial Workers of the World told its members to "disobey and treat with contempt all judicial injunctions," and the "normally staid" American Federation of Labor maintained that a worker confronted with an unconstitutional injunction had an imperative duty to "refuse obedience and to take whatever consequences may ensue."

Why Climate Destruction is Illegal

The Justinian Code, issued by the Roman Emperor in 535 A.D., defined the concept of res communes (common things): "By the law of nature these things are common to mankind - the air, running water, the sea and consequently the shores of the sea." The right of fishing in the sea from the shore "belongs to all men."

Based on the Justinian Code's protection of res communes, governments around the world have long served as trustees for rights held in common by the people. In U.S. law this role is defined by the public trust doctrine, under which the government serves as public trustee on behalf of present and future generations. Even if the state holds title, the public is the "beneficial owner." As trustee, the state has a "fiduciary duty" to the owner - a legal duty to act solely in the owners' interest with "the highest duty of care." The principle is recognized today in both common law and civil law systems in countries ranging from South Africa to the Philippines and from the United States to India.

On Mother's Day, 2011, the youth organization Kids vs. Global Warming organized the "iMatter March" of young people in 160 communities in 45 countries, including the United States, Russia, Brazil, New Zealand, and Great Britain. Concurrently, the Atmospheric Trust Litigation Project brought suits and petitions on behalf of young people in all 50 U.S. states to require the federal and state governments to fulfill their obligation to protect the atmosphere as a common property. Speaking to one of the rallies, 16-year-old Alec Loorz, founder of Kids v. Global Warming and lead plaintiff in the Federal lawsuit, said:

Today, I and other fellow young people are suing the government, for handing over our future to unjust fossil fuel industries, and ignoring the right of our children to inherit the planet that has sustained all of civilization. The government has a legal responsibility to protect the future for our children. So we are demanding that they recognize the atmosphere as a commons that needs to be preserved, and commit to a plan to reduce emissions to a safe level.

Loorz concluded: "The plaintiffs and petitioners on all the cases are young people. We are standing up for our future."

A trustee has "an active duty of vigilance to 'prevent decay or waste' to the asset," according to University of Oregon law professor Mary Christina Wood, whose new book Nature's Trust: Environmental Law for a New Age lays out the legal basis for the suits. "Waste" means "permanently damage." If the asset is wasted in the interest of one generation of beneficiaries over future generations, it is in effect an act of "generational theft."

Although so far the courts have turned down most of these atmospheric public trust suits, the decisions are being appealed. On October 3, 2013, the Supreme Court of Alaska became the first state supreme court to hear such an appeal.

A Global Climate Insurgency

Compelling as the logic of the atmospheric public trust argument may be, it is easy to imagine that many U.S. courts will refuse to force governments to meet such obligations. In a brief to dismiss the Kansas suit, lawyers called the claim "a child's wish for a better world," which is not something a court can do much about.

The sad fact is that virtually all the governments on earth - and their legal systems - are deeply corrupted by the very forces that gain from destroying the global commons. They exercise illegitimate power without regard to their obligations to those they claim to represent, let alone to the common rights beneficiaries of other lands and future generations to whom they also owe "the highest duty of care."

But protecting the atmosphere is not just a matter for governments. Indeed, it is the failure of governments to protect the public trust that is currently prompting the climate-protection movement to turn to mass civil disobedience. Looked at from the perspective of the public trust doctrine, these actions are far from lawless. Indeed, they embody the effort of people around the world to assert their right and responsibility to protect the public trust. They represent people stepping in to provide law enforcement where corrupt and illegitimate governments have failed to meet their responsibility to do so.

When the climate protection movement uses nonviolent direct action to protect the public trust, it is often confronted by government officials acting under color of law to perpetuate climate destruction. The Arctic 30 were held at gunpoint, for example, and charged with piracy. Russian Prime Minister Dmitry Medvedev said, "Concern for the environment must not cover up unlawful actions." A law-enforcing climate insurgency will answer: Concern for oil company profits must not cover up unlawful government complicity in destroying the atmospheric public trust.

See Also:
Anti-Terrorism Law Used to Have Americans Protesting Keystone XL Pipeline Arrested your social media marketing partner


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-35 # MidwesTom 2013-12-18 23:06
Exactly 5 years ago on December 18, Al Gore projected that there would no NO ICE at the North Pole in five years. Is it nay wonder that there are a lot of people who just are not excited about Global Warming, when virtually none of the scary projections have come true. The Economist magazine, log a supporter of Global Warming, is now in the serious questioning camp?
+23 # Eldon J. Bloedorn 2013-12-18 23:54
Please inform the city of Huntington Beach, Ca. that the sea walls they have been building, based on statistical fact, to cope with the rising sea level in this town, according to your opinion are totally unnecessary. I seriously doubt that "The Economist" is "now in serious questioning camp." Maybe one writer who writes for "The Economist" and who flunked flunked math and or science. The vast majority of global warming scientists do now believe that global warming is a serious threat to this planet. Those who are highly deficiant in math and science, such as perhaps the Tea Bagger Party are easily influenced by false opinion. I travel to China 3-4 times a year. The Chinese, especially students, are very much aware of man's contribution to global warming. What can you expect of the U.S. citizens? U.S. students, who sometimes become adults, rank 25 in the world in math and science. Chinese students are quite superior to the U.S. in math and science. The U.S. is the greatest country in the world as regards math and science stupidity.
-16 # MidwesTom 2013-12-19 07:44
The Economist approximately two months ago had a major article wherein they compared earlier predictions with actual results years later, and they concluded that climate scientist simply do not understand what they are studying. The article stated that after a warming period, the earth has now been virtually unchanged for the past fifteen years,

Whenever I read about comparison of student performance on standard tests, I would like to see the percentage of students tested along with the average score. The higher percentage of students that are tested the lower the overall score. If one gave the SAT to the top 20% of a high school class the average score will be higher than if the top 50% of students are tested.

We had a wealthy Chinese family move into our town so that their kids could go to American schools, while the father commutes back and forth to China where he owns a factory employing over 600 people. He at least thinks American schools are superior. They have one son in University, and two in high school
-19 # MidwesTom 2013-12-19 07:46
Could Global Warming have become Climate Change, because there is no Global Warming?
+5 # pbbrodie 2013-12-19 14:22
MidwestTom, why on earth do you put so much confidence in a single article by The Economist, that you continually quote here? How about at least one additional article or other data to back up the claims of that one?
I haven't been able to find any other articles by reputable publishers to back up the claims of that single author at The Economist. The Economist isn't exactly a company that is not beholden to the polluters causing global warming. The reason it went from Global Warming to Climate change was because it is so much easier for people to see the results of global warming through drastic changes in our climate, duh!
Until you can offer some additional believable source, please stop quoting the complete BS from that article! This was not intended to say that the article in The Economist is a believable source. There are countless reports and articles that refute that one and show that the earth has been warming over the period The Economist claims it hasn't.
0 # brianf 2014-01-18 16:15
It's believable when you really really want to believe it.
+18 # Eldon J. Bloedorn 2013-12-18 23:11
So sorry to hear that a pipeline from the U.S. to Canada was approved by the State Department to serve the Alberta sands project. This approved pipeline will transport a distilate from the U.S. to be combined with the Tar Sands product to make it flow and pumped more easily through the pipeline. This is Obama's comment, made a few months ago on national television: and I quote "the pipeline will be approved if processing the tar sands product does not significantly affect the environment." No, I'm not making this up. How does one measure "if processing the tar sands product does not significantly affect the environment?" Is this a weasel clause?
+13 # Glen 2013-12-19 06:03
It was evident, even before the first election, that Obama was bought and sold, as so many others.

The environment has been a major concern for decades, but no government or corporation cares one whit. The U.S. has actually promoted air pollution in China, for instance, by using tourism, etc., as one reason to install air-conditionin g. Then along comes increased manufacturing.

My biggest concern, since the late '80's early '90's, has been the atmosphere, regardless of the amazing degradation to the land. As I have repeated on RSN, the only thing between us (all living things) and the rest of the universe and death is the atmosphere.

THAT is the best reason to get out there and protest and demonstrate and demand improvement in all things affecting the atmosphere.
+4 # Kootenay Coyote 2013-12-19 10:33
& note that that petroleum will be going to Asia.
+2 # tedrey 2013-12-19 11:17
When enough people recognize that this (and many other governments) are illegitimate, both in the sense of this article, having broken the contract that governments are to protect and preserve the people, and in the sense that they are not honestly elected, things may change. But how agonizingly slow enlightenment seems to move.

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