Red Cards and Climate Action
I suspect that not everyone reading this knows what a red card is. Not that you should. But after a Team USA Soccer Player got one recently in a World Cup Match, a lot (and I mean a lot) of people who didn’t know now do.
In Football/Soccer, a red card is issued to a player for committing an egregious foul, especially one that is considered dangerous to the other player. A red card means that the player immediately getting one is thrown out of the game and also banned from playing in the next one. A red card ban is hardly ever (almost never) overturned but of course in that case of the U.S. player it was overturned due to the intervention of a higher authority.
And that brings us to bans against certain climate actions, including both those that directly reduce emissions and those that prohibit climate positive action in the courts.
The best-known of those bans to date has been the ones by states and local governments that have banned the future use of gas in buildings. These have included bans on new gas hook-ups in new construction/major renovations and also bans against gas appliances in new buildings. (None of these have involved taking away gas appliances where they already exist or where it is already being used – contrary to some political accusations) These bans have based on the objective of stopping future methane/CO2 emissions from gas use even if only incrementally.
As these bans began to increase in number, the fossil fuel industry moved quickly. And seemingly in the blink of an eye over 20 states passed legislation against local governments issuing any kind of ban against gas use. As I said in an essay on this a few years ago, so much for the normal deference by state legislatures to local governments, which is normally the case. The industry next went to court to overturn the local government bans in places where the “ban on bans” had not been superseded by state law. They won. They overturned a “good” red card.
But in recent action by Federal Appeals Courts in California and New York, that action banning the gas bans, was overturned. (for more on that, go here)
The other type of banning is not against existing bans. It is a ban on lawsuits against fossil energy companies and other entities in state level courts.
Slowly but surely, environmentalists and other climate advocates have been initiating legal action in the courts, using various creative arguments (including deception, public nuisance, racketeering and antitrust) that in general focus on a securing a finding that emitters and policymaking bodies which enable them have responsibility for the consequences. These lawsuits in part are based on evidence seen in past years that fossil companies knew all along about the dangers of greenhouse emissions and kept that news secret since it would have seriously impacted their business.
These have included cases, such as the high visibility one in Montana, where young people have sued their state for failing to keep them safe. In total almost 30 cases have been brought by states, counties, cities, and tribal governments. (You can see more about those cases here).
Three of those cases, brought by the City of Boulder, the City of Honolulu, and the State of Massachusetts, were cleared to move forward. These lawsuits were based on a charge that the major fossil companies knew that their products were serious contributors to climate change. The suits included a call for compensation which could be used for mitigation.
But now the “Supremes” have dipped their toes into these waters …
The U.S. Supreme Court has agreed to hear an appeal brought by several oil companies which challenges the right of Boulder to sue them in Colorado. A decision by the court could essentially create a ban on climate-based lawsuits against the fossil fuel industry. (For more on the Boulder situation, go here)
As if that threat to climate action was not enough, there is a move in Congress to pass legislation which would give fossil companies legal immunity from legal attacks on climate responsibility.
I am known for my frequent use of “game” metaphors and analogies. I do that often such as when I refer to the need for climate action to reduce emissions and to prepare for adaption by saying “the game is on”. I do that to try to convey the fact that we are not in a situation where we can get around to climate action later on. Global emissions have increased every year for 50 years (including last year). Climate impacts and damages have already begun. You know that because you are seeing them. The game is indeed on in terms of climate change happening now and being fueled by emissions to increase. So, I use the “game” analogy because it helps me then talk about whether we are losing or winning the game, where winning is measured by how much we reduce emissions and the resultant climate impacts such as temperature rise.
A major objective of the fossil fuel industry is use the courts to thwart climate action. It wants to shut down the game whenever and wherever it can. It is important that the courts don’t bend to that and start throwing out red cards. They need to let the players play. I would like to think that the courts are one place where politics has not totally taken over and where rulings are hopefully based on evidence and facts. If that is not the case, and if the courts take broad sweeping action against climate action, we will be in a deeper hole than we already are.