By Burns H. Weston**
The Adirondack Mountains of northeastern New York are for me and my family a promised land. Geologically related to Canada’s Laurentian Mountains, but a few miles south of the mighty St. Lawrence River and west of Lake Champlain, North America’s sixth “great lake”, they are especially beautiful in the autumn when vibrant gold, orange, and red sugar maples meet claret oak and yellow beech and birch on dark evergreen mountainsides to stitch tapestries that feed the soul. My family first staked its slice of this “forever wild” heaven in the late Nineteenth Century, and has enjoyed and sought to protect it ever since, generation after generation. I now enjoy and protect it with my children and grandchildren, and believe they will do the same with their children and grandchildren.
So, when, a few years ago, I learned that possibly my young grandchildren and almost certainly their children will never see the stunning Adirondack autumns my family has cherished for generations, I was devastated. It was in September 2006, on the other side of Lake Champlain, at Vermont Law School (VLS) where, nestled in the Green Mountains, I was then teaching international human rights law to students in our nation’s premier environmental law program. At my invitation, my friend David Orr, Professor and Chair of Environmental Studies at Oberlin College, had just given a lecture on “Climate Change and Human Rights.” He spoke deploringly of many of our environmental practices-such as mountaintop-removal coal mining in Appalachia via the detonation 0f 2,500 tons of explosives daily (equivalent to one Hiroshima bomb weekly), demolishing some 500 mountains over a million acres, poisoning the region’s air and water, and uprooting countless communities. Mostly, however, he spoke of the greenhouse gases that, derived substantially from human activity, are raising earth’s average surface temperature and thereby causing glacial melts, sea level rises, reduced river flows, changed precipitation patterns, extreme weather, species extinctions, and spreading disease-worldwide, and on increasingly grand scales.
Of course, the human rights implications for both present and future generations were obvious. Any honest look at our frightening environmental circumstance makes abundantly clear that basic human rights to water, food, health, economic security, habitat, culture, community-indeed, to life itself-are being severely threatened and damaged, irreparably in many instances-and not just locally, as in Appalachia, but worldwide.
So, en route to a post-lecture dinner at a charming country inn a half-hour north, and wanting to get a still better handle on it all (Al Gore’s An Inconvenient Truth had yet to be released), I asked David just how severe climate change’s harms might be for us in North America. Looking out the car window, he sighed: “See those green mountains out there? Well, in about 30 years, probably they will be more brown than green, and most of your beloved sugar maples will have perished-all across your Adirondacks and New England.” He added: “By the way, Iowa-where, incidentally, I was born-will likely suffer extreme storms, severe flooding, and major soil erosion, not to mention a shift in its climate comparable to Mississippi’s by about 2095.”
I was stunned. Not to put too fine a point on it, David blew my socks off-a measure, of course, of my own embarrassing ignorance.
Still, I thought, what about my children, grandchildren, and great-grandchildren? What heritage for them? Later, I wept.
Of course, my family’s expected loss is nothing compared to the climate change harms others have begun already to suffer and that, in the coming years and decades, millions and millions more will have to endure-the poor and geographically disadvantaged especially, among them women and children primarily. Africa will lose up to 247 million acres of cropland by 2050, equal to the size of all U.S. commodity cropland. The loss of glaciers in the Tibetan Plateau will jeopardize the water supply of 1.5 billion Asians. Entire island nations will confront extinction, their sovereignty swallowed by rising seas-imagine 75 million Pacific islanders swept from their homes into refugee status! Precious indigenous cultures-the Arctic Inuit and Amazonian Kamayurá, for example-will likely wither away, tragically, for lack of food caused by overheated and receding habitats. Desperate people in search of food, water, and safe shelter-e.g., the “environmental refugees” that already are fleeing Kenya’s increasingly drought-stricken Rift Valley-will number as many as 250 million by mid-century, dwarfing the number of “political refugees” that traditionally has strained the world’s caring capacities. In climate change policy circles, the call to action is no longer the language of “prevention,” but of “mitigation” and, increasingly, “adaptation.”
All the same, there it was: my “ah ha” moment, a combined environmental and human rights wake-up call that startled me as nothing else in recent years. “In environmental history,” writes historian J.R. McNeill, “the twentieth century qualifies as a peculiar century because of the screeching acceleration of so many of the processes that bring ecological change.” McNeill could well have added Martin Luther King, Jr.’s stirring admonition at an earlier critical time: “We are now faced with the fact that tomorrow is today. We are confronted with the fierce urgency of now. . . . Over the bleached bones and jumbled residue of numerous civilizations are written the pathetic words: ‘Too late.’”
Consider the facts of just the near future, as determined by the vast majority of the world’s preeminent climate scientists in the UN’s Intergovernmental Panel on Climate Change and, most recently, the interagency team of scientists in the US Global Change Research Program. With threats of irreversible ecological harm mounting daily via the loss of land, forests, freshwater systems, and biodiversity, but especially by the warming of Earth’s average surface temperature (currently about 15° C, 59° F), we face, in the next decade or two and at a minimum, an all but certain 2 degrees Celsius (3.6° F) increase in Earth’s average surface temperature, projected to cause significant sea level rises (Greenland tips into irreversible melt when global temperatures rise above only 1.2° Celsius); heightened extreme weather; intensified flooding and soil erosion; expanded heat waves, droughts, and fires; the disappearance of life-sustaining glacial flows to major cities; aggravated desertification and crop failures (including Amazonian rain forest depletion and wheat crop losses in northern latitudes); famine in more than half the 54 countries of Africa; swelling refugees in search of food and water (increasingly in the face of armed resistance); wider spreading of water- and vector-borne diseases; the likely extinction of 1/3 of all species. Referring to the amount of carbon dioxide currently in the atmosphere, NASA climatologist-and University of Iowa alumnus-James Hansen, among the very first to sound the climate change alarm three decades ago, puts it bluntly: “[it] is incompatible with the planet on which civilization developed. * * * The world is in a state of planetary emergency.”
Now I’m never comfortable talking about or even hinting at doom and gloom scenarios, however valid. It is difficult to speak inconvenient truths and consoling reassurances at the same time. But the fact is that we are at what my co-author and friend Richard Falk calls an “axial moment” in the evolution of our planet and in the lives of all beings that inhabit it. However much the psychologists may warn us-legitimately-against “scare-mongering,” we never will get out of the present environmental “abyss,” as former Yale Dean of Forestry and Environmental Studies James Gustave Speth calls it, unless and until we confront the hard facts and try to do something commensurately constructive about them. No moral exhortation this. It’s a necessity. Profound changes in our individual and social behavior are required. And there is no escaping it.
In any case, awakened by the patent need to bring the environment and human rights into cooperative harmony, and seized by the fierce urgency of now, I envisioned and undertook a project that would look deeply into the question of climate change and intergenerational justice. This Climate Legacy Initiative (CLI), as it came to be called, would be a joint project of Vermont Law School’s Environmental Law Center and The University of Iowa’s Center for Human Rights (UICHR), dedicated to researching and analyzing how current law-national and international, indigenous and foreign-conceptualizes and codifies the ethical rights and duties that exist between future and current generations ecologically, and in the context of climate change especially. Building on the pioneering work of my Georgetown University international environmental law colleague Professor Edith Brown Weiss (see her germinal 1989 book In Fairness to Future Generations), it would seek to answer intriguing and, indeed, generally unexplored legal questions: Is it possible for U.S. law, the law of other countries, indigenous peoples’ law, and/or international law to define the rights of future generations to a clean, healthy, and sustainable environment? Likewise, can law impose a duty on current generations to pass on a climate legacy of this sort?
During its first two years, the CLI, led by me and my VLS colleague Professor Tracy Bach, identified and collaborated with individuals and organizations who, like us, saw political leverage in an intergenerational justice focus, and who therefore joined our effort as members of the CLI’s Distinguished Advisors Panel, as members of its national and international Consultants Working Group, and as faculty and student researchers and writers at VLS and the UI. Now, three years since we began , the CLI has given birth to a 108-page Policy Paper, complete with 624 pages of Background Papers (Appendix A) and Recommendations (Appendix B), that documents this research and more. Authored by Professor Bach and myself, it is titled Recalibrating the Law of Humans with the Laws of Nature: Climate Change, Human Rights, and Intergenerational Justice, and offers both a legal framework for constructing intergenerational rights and duties and recommendations that seek to implement it.
Why? What did we find that led to this result?
- that the vast majority of the US population-indeed, the vast majority of the world’s population-believes that we, the living, have an obligation to leave a livable world to future generations;
- that there exists a broad consensus that this obligation must take the form of (a) preserving diversity of natural and cultural resource options comparable to those enjoyed by previous generations; (b) maintaining the quality of the planet so that it is passed on in no worse condition than when received, and repairing it where necessary to meet this duty; and (c) providing members of current generations equitable access to the legacy of past generations and conserving this access for future generations;
- that the Preamble of our Constitution expresses concern for posterity and provides, therefore, a strong impetus to develop legal structures to protect the most vulnerable of all human populations, our children and their children; and
- that this aspiration has found its way, too, into our state and foreign constitutions, in national and subnational legislation, in regulations and judicial decisions, and, indeed, in the emerging law of human rights that extends to all people everywhere.
We also found, however, that these expressions of intergenerational concern are, overall, much too limited in legal scope and practice to meet the challenge of intergenerational justice in the context of such large-scale environmental hazards as climate change. Indeed, climate change’s predicted pervasive impacts on human civilization call the very assumption of legacy into question.
Therefore, after making the scholarly case that ecological protections for future generations and concomitant present-day obligations relative to them are supported by plausible and persuasive theories of social justice (particularly when the theories are grounded on the value of respect, the core value of human rights), we could not consider our work done. We knew we had to envision and articulate at least a few legal and policy tools that could address the ecological and social justice crisis we face.
Make no mistake. The law is a slow and often ponderous process even when it produces radical outcomes. We have no illusion that the law can or will respond quickly to the environmental and human rights crisis that is painfully at hand, at least not in democratic societies. Yet, by identifying, devising, and promoting legal strategies that can help offset the deficit found to exist in the way the law prioritizes free market values over the environment and human rights, we can, I believe, do some good. And especially if, along the way, they give real impetus to a much-needed paradigm shift in the way law and nature interact.
Such, at least, is the outlook that shaped 16 legal innovations and reforms we have recommended for mostly (but not only) US legal scholars, policy-makers, and jurists to pursue-pressured, we hope, by an informed, persuasive, and persistent civil society. This is not the place to recount them in detail. We have done this already on the CLI’s parent website at www.vermontlaw.edu/cli  (“Publications”). It is, however, important to stress here that all respond to critical needs which, if not met soon, will bode serious ill for our planet’s future. Examples:
- the adoption of state and national constitutional amendments and statutes establishing the rights of present and future generations to clean, healthy, and sustainable environments;
- the enactment of state environmental protection acts (SEPAs) t0 complement and strengthen, and a national environmental legacy act (NELA) to supplement, already existing but weak national environmental protection laws, the US National Environmental Protection Act (NEPA) in particular;
- the adoption of cap-and-trade regulations for allocations to energy efficiency;
- the creation of sky trusts and other environmental stakeholder trusts to sustain and safeguard common ecological assets
- the expansion of the public trust doctrine beyond its current limited application to safeguard the entire environment for present and future generations;
- the establishment of legal guardians for future generations, with provision for their training and certification;
- the adoption of UN resolutions aimed at protecting the ecological rights and interests of present and future generations, including a call for the establishment of the atmosphere as a global commons protected by precautionary principles and strong enforcement powers; and
- the fine tuning of international trade rules to the ecological needs and interests of future generations.
Longer term, but arguably most important of all, is the definition, development, and deployment of a Law of the Ecological Commons for present and future generations, guided by life-sustaining, community-nourishing, and dignity-enhancing principles. To this I have begun to bend my energies.
Three concluding observations.
First, it is impossible to think that creative responses to climate change and other severe environmental threats can be successful without effective legal and policy challenges to the “business-as-usual” mentality that, in this setting, constitutes an irreversible experiment with the only biosphere we have. Of course, the law cannot and should not be expected to act alone. As the former Vice President of Exxon Norway, now Chairman of the Norwegian Branch of the Worldwatch Institute, Øystein Dahle has put it, “[t]he challenge will also require a complete redesign of the working relationship between the political system and the corporate sector,” a redesign that favors economic systems willing “to tell the ecological truth,” to wit, that capitalism regularly ignores environmental costs when pricing (i.e., under-pricing) products and services so as to win consumers and thereby maximize profits and markets-a “silent theft,” as commons scholar David Bollier would describe it. But even in the redesign of our operating system, what entrepreneur Peter Barnes calls “Capitalism 3.o,” the law has a central role to play. The law is, after all, both a foundation for, and a mirror of, who we are as a society (economic and otherwise) and, indeed, as a people-temporary visitors, let us not forget, on a highly fragile, lonely planet. So the Climate Legacy Initiative views the fact of global climate change as an opportunity to repeal past shortsightedness by exploring legal and policy tools that address our long-ignored environmental and human rights obligations to ourselves and to those who follow us. We also believe that our Policy Paper is not the end but, rather, the beginning of such endeavor. All of its recommendations bespeak the importance of further engaging the most creative legal and non-legal minds available in this realm, scholars and activists willing to think “out of the box” and to propose new, progressive ideas that can be put into “real world” practice both immediately and over time. Said Albert Einstein: “We cannot solve problems by using the same kind of thinking we used when we created them.”
Second, a project as ambitious as the Climate Legacy Initiative would not have been possible without the diverse and multiple generosities of those who envision how the world should be and act to make it so. Thus, though written by Professor Bach and myself, in truth the CLI Policy Paper is the result of an elaborate collaboration across our country and world. We oversaw and profited from the work of 13 law student research assistants at VLS and the UI. We commissioned research that both contributed to the Policy Paper and resulted in separate scholarly publications. We benefitted from the wisdom of our Distinguished Advisors Panel (Harriet Barlow, Richard Falk, Gary Hart, Roger Kennedy, Bill McKibben, Bryan Norton, David Orr, James Gustave Speth, Jörg Chet Tremmel, Edith Brown Weiss). We learned from symposia on climate change and intergenerational justice which we sponsored and in which we participated (among them, “Climate Change and Human Rights” hosted by the UI College of Law’s Transnational Law and Contemporary Problems journal). And all of this we did, obviously, with the help of others, including many from the UI: professors Jonathan Carlson and Jerald Schnoor (of law and engineering, respectively); UICHR colleagues Sharon Benzoni and Maureen McCue; and five UI College of Law research assistants (Jacob Larson, JD ’08; Kara Moberg, JD ’09; Suzan Pritchett, JD ’08; Wan-chun Dora Wang, JD ’10; and Michelle Wheelhouse, JD ’09). Presently emerging, as an outgrowth of a concluding partnership-building meeting we convened with individuals and organizations at the forefront of climate change thinking and action to help guide our future activities, is the beginning of a further collaborative effort: a Climate Legacy Network of scholars, practitioners, governmental officials, and activists (civil society and corporate/labor, national and international) who, like us, are intent upon safeguarding our ecological future and our human rights in it as much as is possible in the dwindling time allowed us by the problematic relationship between human enterprise and Mother Nature.
Finally, but perhaps most importantly, it never should be assumed that our CLI Policy Paper speaks to the legal profession and to governmental policy- and decision-makers alone. Proof positive is some of our scholarship which draws upon, and some of our marketing materials which reach out to, environmentally-concerned faith-based communities. To be sure, legal professionals and governmental officials are indispensible constituencies. But all of us, citizens of our country and world, and especially our children and grandchildren, are potential victims of climate change and thus have a stake in effective responses to it, legal and otherwise. As President Kennedy observed in his Commencement Address at American University in 1963: “[I]n the final analysis, our most basic common link is that we all inhabit this small planet. We all breathe the same air. We all cherish our children’s future. And we are all mortal.” Indeed! And each of us mortals has also a talent or skill that can be put to good use in the global environmental rights struggle provided we make it known. Also-bottom line-each of us knows how to write letters, stuff envelopes, lick stamps, email, twitter, phone, and otherwise lobby and petition our elected representatives and corporate leaders to give life to the progressive legal reforms we have proposed and that others will craft in the future. In short, all of us must do whatever we can, as much as we can, whenever we can, and as if our lives depend on it-because they do. No time, this, for denial or excuses and consequent inaction-indeed, precisely the opposite, and, I submit, noisily and impatiently so. “The reasonable man,” George Bernard Shaw famously wrote, “adapts himself to the conditions that surround him. . . . All progress depends on the unreasonable man.” And the unreasonable woman, too, of course! The fierce urgency of now beckons each and every one of us. Are we up to the challenge?
* Copyright (c) 2009 by Burns H. Weston.
** Bessie Dutton Murray Distinguished Professor of Law Emeritus and Senior Scholar, UI Center for Human Rights, The University of Iowa; also Director, Climate Legacy Initiative, The University of Iowa and Vermont Law School. I am indebted to Sharon Benzoni who, at a critical time, helped me shape the substance and tone of this comment, and did so with characteristic acumen and generosity.