Jeremy Brecher
On the weekend of September 21, 2014, people in 162 countries joined 2,646 events to demand global reductions in the greenhouse gas (GHG) emissions that are generating climate catastrophe. An estimated forty thousand marched in London; thirty thousand in Melbourne; and twenty-five thousand in Paris. Some four hundred thousand joined the People’s Climate March through the center of New York City. The climate protection movement had come a long way since 2006, when a march of one thousand through Burlington, Vermont proved to be the largest climate protest in American history. Yet, despite its exponential growth, whether and how the climate protection movement could realize its goals remained an open question.
The Failures of Climate Protection
Climate change poses an existential threat to our species, to every individual, and to all that any of us hold dear. Protecting the earth’s cli- mate is in the long-term interest of all humanity. Yet, efforts to cut carbon and other GHGs to a climate-safe level have been defeated for a quarter-century in arenas ranging from the United Nations to the U.S. Congress.
Those failures are not what most climate protection advocates expected. From the scientific confirmation of global warming in the 1980s, they had laboriously built institutions like the United Nations Framework Convention on Climate Change and the Intergovernmental Panel on Climate Change and had painstakingly constructed a consensus among scientists,government leaders, and UN officials around the policies defined as necessary by the IPCC. The UN “framework agreement” was followed by the Kyoto Protocol and the Bali Road Map for the 2009 Copenhagen climate summit. The world seemed to be proceeding on a rational, if tardy, course to address climate change.
With the collapse of the Copenhagen climate summit in 2009, it became evident that the entire process had been little more than a charade in which world leaders, governments, and businesses pretended to address climate change while pursuing policies that pour ever more GHGs into the atmosphere. Copenhagen revealed a collection of greedy, advantage- seeking institutions whose leaders were unable to cooperate even for their own survival. The charade goes on: last November’s extravagantly hailed U.S.–China climate agreement, in the unlikely event that it is actually adhered to, will result in an estimated temperature rise of 3.8 degrees Celsius—nearly twice the 2-degree increase scientists say is the maximum compatible with human civilization as we know it. It is a suicide pact by the world’s two leading polluters with the rest of the world as collateral damage.
In response to the failures of the official climate protection process, an independent climate protection movement has emerged. It is not controlled by any national or special interest. Instead, it has been organized globally and has demonstrated the capacity to act globally, exemplified by the actions in 162 countries for last year’s People’s Climate March. This movement has broken out of the constraints of lobbying and demonstrating within a legal framework set by governments by instead adopting civil disobedience as an important and legitimate part of its strategy. It has challenged the governments that permit climate destruction, the fossil fuel producing and using industries that conduct it, and the corporations and other institutions around the world that collude with it. In spite of its growth and commitment, the movement’s ability to sharply reduce GHG emissions and establish climate-safe levels of carbon in the atmosphere has so far proven minuscule.
The World Order of Climate Destruction
If protecting the earth’s climate is in the long- term interest of all humanity, why have the efforts to cut GHGs to a climate-safe level been defeated for a quarter-century? The answer lies primarily in our long-evolved world order—the overall patterns by which we have organized our life on earth.
Governments, corporations, and other dominant institutions are not evolved to provide for either the long-term interests or the common interests of the world’s people. These dominant institutions have grown and prospered by pursuing the short-term interests of their citizens and stockholders (or often just a small, dominant elite among them) in competition with the citizens and stockholders of other companies and countries. They are not designed or structured to pursue any wider human or global interest. Moreover, their time horizon is determined not by the lifetimes of our children and grandchildren but by the next election cycle or quarterly report. To their leaders, sustainability means getting through the next couple of years without loss of elections or profits.
Conversely, the institutions supposed to represent global common interests—for example, the United Nations—proved weak and dependent on governments, which ultimately retain formal or de facto veto power over their actions. Most governments, in turn, are subject to the de facto veto power of private economic interests driven to pursue short-term private gain above all else.
Although great powers and corporations are the dominant factors in this process, many other people and institutions pursue short-term self- interest at the expense of climate protection, often in pursuit of their own economic survival. Local communities and workers dependent on fossil fuel industries, for example, have campaigned to weaken climate protection legislation and block 
international climate agreements. Developing countries have fought to maintain their right to expand their use of coal. Such de facto allies have helped enable the major GHG emitters and their supporters to pursue a hypo- critical path, talking the climate protection talk while walking the GHG walk.
international climate agreements. Developing countries have fought to maintain their right to expand their use of coal. Such de facto allies have helped enable the major GHG emitters and their supporters to pursue a hypo- critical path, talking the climate protection talk while walking the GHG walk.
A Global Non-violent Constitutional Insurgency
Faced with the nightmare of climate change, advocates of climate protection are pulled in two contradictory directions. One is to advocate “politically realistic,” increasingly incremental changes, cheering as victories policies that mean devastation for life on the planet. The U.S.–China climate deal and the Obama EPA carbon rule are recent cases in point. This is like incremental reduction in speed for a car that is hurtling toward a cliff; unless the brakes are jammed on, the car will go over the cliff any- way. The other tendency is to identify capital- ism as the cause of climate change and argue that climate change requires a revolution to eliminate capitalism. Whether or not that is a desirable goal, it is difficult to imagine world- wide revolution occurring within a time frame that will forestall utter climate devastation. Nor does there appear to be an abundance of plausible conceptions of how such a revolution might occur or how a post-revolutionary regime might create a climate-safe economy.
Is there another plausible option? In my new book Climate Insurgency: A Strategy for Survival, I propose as a possibility to consider what I call a global non-violent constitutional insurgency. A non-violent insurgency, like an armed insurgency, refuses to accept the limits on its action imposed by the powers that be. Unlike an armed insurgency, it eschews violence and instead expresses power by mobilizing people for various forms of non-violent mass action.
The idea of a constitutional insurgency was developed by labor lawyer and historian James Gray Pope. He describes how the American labor movement long insisted that the right to strike was protected by the Thirteenth Amendment to the U.S. Constitution, which forbids 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 Labormaintained that a worker confronted with an unconstitutional injunction had an imperative duty to “refuse obedience and to take whatever consequences may ensue.”
A constitutional insurgency, as Pope describes it, declares a set of laws and policies themselves illegal and sets out to establish law through non- violent mass direct action. It is not formally a revolutionary insurgency because it does not challenge the legitimacy of the fundamental law; rather, it claims that current officials are in violation of the very laws that they themselves claim provide the justification for their authority. Insurgents view their “civil disobedience” as actually obedience to law, even a form of law enforcement.
Such an insurgency, Pope says, “unabashedly confronts official legal institutions with an
outsider perspective that is either absent from or marginalized in official constitutional discourse.” On the basis of its own interpretation of the U.S. Constitution, such an insurgency “goes outside the formally recognized channels of representative politics to exercise direct popular power, for example through extralegal assemblies, mass protests, strikes, and boycotts.” It may hold such actions legal, even though the established courts condemn and punish them.
Climate Protection as a Legal Duty
Is there a claim for a constitutional duty to protect the climate equivalent to the belief that the thirteenth amendment protected the right to strike? One candidate to play that role is the public trust doctrine.
The public trust doctrine has roots and analogues in ancient societies from Europe to East Asia to Africa, and from Islamic to Native American cultures. It was codified in the Institutes of Justinian, issued by the Roman Emperor in 535 AD. The Justinian code 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.” The Justinian code distinguished such res communes from res publicae, things which belong to the state.
Based on the Justinian Code’s protection of res communes, governments have long served as trustees for rights held in common. In American law, this role is defined by the public trust doctrine, under which the state serves as trustee on behalf of the present and future generations of its citizens. Even if the state holds title to a given resource, 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. This principle is accepted 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.
Based on legal arguments developed by University of Oregon law professor Mary Christina Wood, youth plaintiffs backed by the legal organization Our Children’s Trust have brought legal actions in all fifty states, the U.S. Federal courts, and several other countries seeking to apply the public trust doctrine to climate protection.6 Not surprisingly, most courts have been unreceptive to their arguments.
The public trust doctrine, however, provides a powerful basis for a constitutional insurgency on behalf of climate protection. It maintains that the atmosphere is the common property of present and future generations. All governments have the highest level of duty to protect it as a public trust and prevent its being wasted either by other governments or by third parties. The public trust doctrine provides a way to clearly define the just duties of each country. The climate protection movement can validly argue that governments are in violation of this duty and that citizens have the right and responsibility to enforce the protection of the atmosphere against climate destruction. Civil disobedience to protect the planet against global warming is an act of law enforcement against governments that are complicit with the wast- ing of the atmosphere.
[The public trust doctrine] maintains that the atmosphere is the common property of present and future generations.
The effort to enforce the law against unlawful governments by means of non-violent civil disobedience constitutes a global constitutional insurgency. It challenges the legitimacy of all governments on the basis of their failure to meet their highest duty, to protect the public trust, and it refutes the claims of polluters that their legal property rights authorize them to go on destroying the earth’s climate.
Such insurgent actions can be mutually supportive with other forms of action. They can stimulate those who choose to work within established channels like electoral politics and lobbying to recognize what is necessary for genuine climate protection, even while they fight for measures that go only a small way toward solving the problem. The insurgency can encourage those who are acting here and now in civil society to convert their own lives and communities to a climate-safe basis. These “inside” and “outside” forces can be linked by coordinating networks that make their efforts synergistic and focus their power on institutions that need to be changed. Such cooperation is likely to involve tension, but each side needs to recognize that they are unlikely to achieve their objectives in the absence of the other.
A Global Insurgency
The destruction of the climate by GHGs is produced in specific locations throughout the earth; it affects specific locations in every part of the globe; it can only be corrected through global solutions implemented in specific locations. The whole must be changed in order to change the parts; changing the parts is necessary to change the whole.
A global insurgency is not so much an effort to overthrow one or another government as it is an effort to transform the world order. That is a daunting objective, but in some ways trans- forming the world order is easier than trans- forming the social and political order of individual nations. World orders are notoriously disorderly and fluid; their structure is maintained primarily by the mutual jostling of independent power centers. They change all the time: where is the division of the world between two Cold War rivals or the global Keynesian economic regulation of fifty years ago? Moreover, unlike national governments operating under constitutions with officials chosen by elections, the world order has not the slightest claim to legitimacy. No electorate has ever consented to superpower rivalry or global neoliberalism — or destruction of the earth’s climate. It is against this illegitimate but mutable world order that a climate protection insurgency is ultimately aimed.
Harbingers of Climate Insurgency
What would a climate insurgency look like? No doubt it would include events like the People’s Climate March and the civil disobedience campaign against the Keystone XL (KXL) pipeline. But it would present them as a challenge to the very legitimacy of the governments and corporations that are responsible for climate destruction.
As world leaders descended on the United Nations in the aftermath of the People’s Climate March, across the street representatives of climate change-impacted peoples from around the globe assembled for a People’s Climate Justice Tribunal sponsored by the Climate Justice Alliance. After hearing their testimony, a judicial panel of respected movement figures declared, “Based on the evidence we have heard here today, the nations of our world are in violation of their most fundamental legal and constitutional obligations.” Citing the public trust doctrine, it called on governments “to honor their duty to protect the atmosphere, which belongs in common to the world’s people, and halt their contribution to climate destruction.”
Based on the evidence it heard, the panel concluded that “those who blockade coal-fired power plants or block tar sands oil pipelines are committing no crime.” Rather, they are “exercising their right and responsibility to protect the atmospheric commons they own along with all of present and future humankind.” They are acting to prevent a far greater harm — indeed, “a harm that by virtue of the public trust doctrine is itself a violation of law on a historic scale.”
What would such action look like? On Earth Day 2013, Alec Johnson, a.k.a. “Climate Hawk,” locked himself to a construction excavator in Tushka, Oklahoma, as part of the Tar Sands Blockade campaign to stop the Keystone XL pipeline. Johnson was to be the first
defendant anywhere to make a necessity defense based on the duty of government to protect the climate under the public trust doc- trine. In the statement he prepared for the jury, he asserted,
“The fact that TransCanada was permitted to lay pipe in the ground where I chose that day to obstruct their construction efforts is proof that both the state of Oklahoma and the United States government were in dereliction of their obligations under the Public Trust. I was not in dereliction of my duty, my sacred obligation as a parent, and stand before you proudly innocent of the crimes I’ve been charged with.” He added, “I wasn’t breaking the law that day—I was enforcing it!”
Although Johnson could have been sentenced to up to two years in the Atoka County jail, he in fact received no jail time and a fine of just over $1,000. Johnson commented, “Together with the jury’s very light sentencing the whole trial experience felt like a victory.”
It may also have been the opening shot of the global non-violent constitutional climate insurgency.
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