Towards the Return of First Principles, at Year’s End

By Dan Galpern, CPR Initiative General Council & Executive Director

The rule of law, a prerequisite to justice and fairness, is also fundamental to the ability of governments to attend to their primary duty — “the care of human life and happiness, and not their destruction.” (Thomas Jefferson, March 31, 1809, To the Republicans of Washington County, Maryland.)

I raised this fundamental point two weeks back in a discussion with the Climate Emergency Forum, in which I discussed the critical context for our battle to confront dangerous climate change by utilizing existing bedrock federal law.

The Toxic Substances Control Act (TSCA) manifestly instructs the US Environmental Protection Agency (EPA) to constrain or prohibit substances that present “an unreasonable risk of injury to public health or the environment.” And yet, EPA rejected our petition calling upon the Agency to utilize that authority to protect the nation against what is “literally an existential threat to our nation and to the world.” (Joseph Biden, July 20, 2020, Remarks on Actions to Tackle the Climate Crisis.)

And so, in The Legal Battle to Save the World our own Donn Viviani discusses why he has joined with other experts, including Dr. James E. Hansen, John Birks, Richard Heede, and Lise Van Susteren to wage a citizens’ lawsuit seeking to compel the US to act strongly on climate. Donn’s fundamental point: TSCA was passed as a chemical safety action, yet CO2, methane, and other GHG pollutants stemming from use of fossil fuels are now clearly the most-deadly chemical substances but still largely unconstrained.

Our case turns on one fundamental question: Will our government be required to take its primary duty under the law seriously, and so protect the nation from the enveloping whirlwind caused by the continued burning of fossil fuels?

In the Legal Battle program, Donn neatly summarizes that under TSCA a rising carbon fee could be established to deter additional pollution, and that major GHG polluters could be made to remove (or pay to remove) legacy GHG pollution — with the ensuing effective carbon price made global via border restrictions on imports from nations without equivalent or better restrictions.

Dr. Hansen and several other climate scientists recently advanced the same points in their far-reaching study, Global Warming in the Pipeline. In Pipeline, Hansen et. al establish that “[e]ventual global warming due to today’s GHG forcing alone — after slow feedbacks operate — is about 10°C.” That level of warming is far, far higher than what is commonly believed.[1]

To counter that impending calamity, Dr. Hansen and his other Pipeline authors call for “a global increasing price on GHG emissions” and “purposeful intervention to rapidly phase down present massive geoengineering of Earth’s climate” – including “[r]emoval of human-made GHGs from the air.” Those same remedies, of course, are central goals in our present lawsuit. Going further, however, Pipeline authors also advise serious research and evaluation this decade into methods of solar radiation management, whose temporary utilization may be needed to limit melting of Antarctic ice shelves and thus preserve coastal cities.

It remains to be seen whether our nation and the international community can muster the intelligence, speed, and coordination needed to head off the “enormity of consequences of warming in the pipeline” about which Jim Hansen and colleagues in their Pipeline study warn. But successively bright moments at the close of 2022 suggest some possibility that reason might yet prevail, including, in reverse chronological order, with respect to Ukraine, January 6, Montreal, and Sharm El-Sheik.

On Dec. 21, Volodymyr Zelenskyy, President of Ukraine, speaking directly to American families even as he addressed a joint session of the US Congress, declared that “[t]he restoration of international legal order” is our “joint task.” Importantly, as well, Zelenskyy revealed that he just that day outlined his 10-point “peace formula” at the White House, and that he was “glad to say that President Biden supported our peace initiative.”

News accounts since Zelenskyy’s address have neither detailed that ten-point proposal nor discussed the US response to earlier iterations. This is strange, because, in combination with additional US military aid to Ukraine, a reasonably supportive and public US response could help press the Kremlin to reconsider its continuing commitment to destructive aggression. That, more than any present threat to haul Putin before the International Criminal Court, or some facsimile, could in theory pave the way for sooner-than-later restoration of international legal order in central and eastern Europe.

On Dec. 19, the House of Representatives’ Select Committee to Investigate the January 6th Attack on the United States Congress referred former President Trump, one key adviser, and unspecified “others,” to the Department of Justice for prosecution under several criminal statutes. Harvard Law Professor Laurence Tribe called the Committee’s report “magnificent,” and my own close reading of its 154-page executive summary confirms that assessment.

A neat encapsulation, put together by MSNBC, is readily available at the foregoing link, and host Lawrence O’Donnell there performed a public service by giving Professor Tribe an uninterrupted five full minutes, commencing at minute 11:15, to explain why, this time (and at long last) justice should prevail.

I should note, as well, that, at minute 8:56, the news segment provides the viewer with Congressman Jamie Raskin’s clarion two-minute presentation of several key crimes at the heart of the Committee’s referral. Raskin’s statement amounts to a tightly condensed recitation, and because these may form the basis for efforts during 2023 to defend our fundamental democratic processes, including for the peaceful transfer of power, I have provided, as an aid to the reader, my own transcript of Raskin’s statement, with appropriate hyperlinks to the statutes he summarized.[2]

Also on Dec. 19, in a meeting in Montreal, the 15th Conference of the Parties to the United Nations Convention on Biodiversity, narrowly averted diplomatic stalemate by agreeing to a “Kunming-Montreal Global biodiversity framework,” essentially a new set of non-binding but specific goals and targets aimed, among other things, to conserve “at least 30% of the world’s lands, inland waters, coastal areas and oceans, with emphasis on areas of particular importance for biodiversity and ecosystem functioning and services.” The Convention agreed to “combine national information by late 2026 into a “global trend and progress report,” thus presenting a potential opportunity to shine public attention on recalcitrant nations.

Some 23 “action-oriented global targets for urgent action over the decade to 2030” were agreed, with such actions “set out in each target . . . to be initiated immediately and completed by 2030.” Those targets are grouped within several conceptual categories, with Targets 1 through 8 aimed at reducing threat to biodiversity. Target 8, among them, aims to “[m]inimize the impact of climate change and ocean acidification on biodiversity and increase its resilience through mitigation, adaptation, and disaster risk reduction actions, including through nature-based solution and/or ecosystem-based approaches, while minimizing negative and fostering positive impacts of climate action on biodiversity.” We will see.

On Nov. 20, in a meeting in Sharm el-Sheikh, Egypt, the 27th Conference of the Parties (COP27) to the United Nations Framework Convention on Climate Change (UNFCCC) purportedly agreed to a “Breakthrough Agreement on [a] New “Loss and Damage” Fund for Vulnerable Countries.” That “breakthrough” is somewhat cloaked in decidedly opaque language at pages 4-5 of the Sharm el-Sheikh Implementation Plan. The reader is advised to review §VI of that Plan if they are especially intrepid (or else in need of an aid for insomnia) because the weasel-word-ridden language was carefully chosen to give national representatives a way of declaring progress without unduly offending skeptical constituencies back home.

Already the commitments provided by President Biden at COP27 on behalf of the major historical emitter have been undermined, in part, by domestic US politics, but the principle established in Sharm el-Sheikh that those nations most responsible for the present crisis bear largest responsibility to aid lesser-polluting states on the front line is quite important. Still, the COP27 “breakthrough” neatly avoids the more central question of how to stem the tide and avert the enveloping crisis with respect to our climate system. Certain other developments at COP27, however, with respect to the position of the United States may be helpful in this regard, and that is a topic to which we will have occasion to return to in my next blog.

What is the upshot of all this late-breaking political and diplomatic tumult, and its relationship to our central objectives at CPR Initiative? It is simply this: In various and creative, albeit hedging and uncertain ways, organized society is attempting to hold the line against anti-democratic, unlawful, or retrograde impulses, movements, and trends. Some of the latter manifest themselves in aggression against the autonomy of presumed (at-first) weaker nations, or peoples; others against the rule of law and fundamental democratic principles; while still others aim, sometimes deftly, at preserving the right of powerful interests to continue business as usual even after the resulting baleful consequences are well understood.

We stand with civil society to secure a greater measure of justice, under law, applying reason and determination, as the new year rapidly approaches.

[1] The higher warming results from their assumption that nations will continue to compel the filtering out of specific fossil fuel emissions of sulfur dioxide (SO2) and nitrogen dioxide (NO2) in order to improve public health. Such aerosol pollutants, however, happen also to provide a short-term planetary cooling effect, one which, to date, has masked some of the warming that otherwise would be visited on the planet from increasing atmospheric concentrations of CO2, methane, and the other GHGs. Continued selective removal of such aerosol pollution, therefore, will function to accellerate global warming, unless accompanied by serious GHG phaseout and removal.

[2] “The first criminal statute we invoke for referral, therefore, is Title 18, Section 1512(c), which makes it unlawful for anyone to corruptly obstruct, influence or impede any official proceeding of the United States government.  We believe that the evidence described by my colleagues today and assembled throughout our hearings warrants a criminal referral of former President Donald J. Trump, John Eastman, and others for violations of this statute. The whole purpose and obvious effect of Trump’s scheme were to obstruct, influence and impede this official proceeding, the central moment for the lawful transfer of power in  the United States.

“Second, we believe that there is more than sufficient evidence to refer former President Trump, John Eastman and others for violating Title 18, Section 371. This statute makes it a crime to conspire to defraud the United States. In other words, to make an agreement to impair, obstruct or defeat the lawful functions of the United States government, by deceitful or dishonest means.

“Third, we make a referral based on Title 18, Section 1001 which makes it unlawful to knowingly and willfully make materially false statements to the federal government. The evidence clearly suggests that President Trump conspired with others to submit slates of fake electors to Congress and the National Archives.

“The fourth and final statute we invoke for referral is Title 18, Section 2383. This statute applies to anyone who incites, assists, or engages in insurrection against the United States of America, and anyone who gives aid or comfort to an insurrection.”

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