A Rising Form of Environmental Activism: Litigation Tiffany Liang

A RISING FORM

of

ronmental struggles, as they biologically relate to many natural flows and disturbances, resulting in their dominant environmental advocacy. Many push this further to advocate for social and legal protections to safeguard this biological vulnera- bility such as reproductive freedom and maternal health rights. Historically and culturally, women have tended to predominantly fulfill roles in agricultural pro- duction and household administration, providing the main source of nourishment for families and communities. Currently, women produce 60 to 80 percent of food in the Global South remain criti - cal in collecting and storing water, securing fuel sources, and managing agricultural lands (Owren, 2012). These profound responsibilities have fur - ther bonded women to the environment as entire communities depend on womens’ collaboration with the natural world. This induces women to often notice environmental problems more quickly and exigently as they in - teract with the environ- ment in situations of considerable closeness and regularity (Mer - chant, Ecology 242). To many women, this instills a cogent and personal responsibili - ty to preserve and re- spect nature. But, some argue that this historical proximity to nature can be interpreted as environ - mental dependence which often drives women to reach into divergent fields (Blum 9). Both reproductive abilities and enduring labor positions of women provide powerful insight into how an innate closeness to nature manifests in multifarious characteristics, belief systems, and courses of action. The dichotomy between essentialism and thoughtful understandings of women and nature has long been seeped in misconstruction. On one hand, the interrelatedness of woman and na - ture “turned upside down becomes the source of women’s empowerment and ecological activism” (Merchant, Radical Ecology 482). Many celebrate ate this connection asserting that it inculcates characteristics of strength and guardianship re- sulting in the construction of women as protec- tors of the environment. This, in many ways, is essentialism which is the view that all entities are defined by a certain set of physiological charac- teristics. Essentialism in this innocuous manner is used as a tool to bolster the idea of women being uniquely and dynamically related to nature as a way to uplift womens’ capacity to interact with the environment. On the other hand, essentialism has the potential to and currently is employed in our society at a detriment to women and the environment when utilized for repressive purposes. It can be facile to assume that womens’ biological relation to na- ture inherently makes their essence sympathetic to the environment. However, this is a dangerous generalization as essentializing women to blanket characteristics restricts their capacity of change and individu- ality. It also provokes the question “do women have a special relationship to nature that men cannot share?” that ecofeminist Car- olyn Merchant challenges (Merchant, Ecology 243). If, ac- cording to this essen- tialist perspective, all individuals assigned as women at birth have in- herent fixed “feminine” characteristics, then men, sexually non-binary, or trans- gener individuals must inher- ently lack sympathy and regard for nature. According to environmental philosoper Kenneth Worthy, personal connections to nature in modern times are more profoundly es- tablished by occupation, leisure activities, and lo- cation rather than by biological sex. Declaring that a woman is one specific thing excludes others and subjects women to an inaccurate, socially-derived notion that restricts their freedom. Reconciling these two seemingly similar but powerfully diver- gent concepts (essentialism and woman’s “special connection”) has been an enduring polemic. One way to comprehend the “special connection” Do women have a special relationship to nature that men cannot share? ENVIRONMENTAL ACTIVISM

by TIFFANY LIANG

LITIGATION

The phrase environmental activism brings to mind organized strikes with big, colorful posters, campaigns against plastic bags and straws, and activists lobbying Congress and trying to get signatures for petitions. But perhaps what is less noticeable is the climate change battle raging on in courtrooms, on legal pads and through law professionals. It manifests as a rising form of environmental activism — litigation.

According to “Global Trends in Climate Change Litigation: 2019 Snapshot,” a policy report by Joana Setzer and Rebecca Byrnes, more and more legal battles have been levied as a means to hold governments and corporations environmentally accountable. 28 countries have seen climate-related lawsuits, and more than 75 percent of these cases have been filed in the U.S.

The US is perhaps at the epicenter of environmental lawsuits due to its culture of litigation and onslaught of cases against the Trump administration’s environmental deregulation efforts. One current notable example is California v. Chao, in which California is fighting to retain its ability to set its own emission standards for automobiles, which are more stringent than federal standards. California was granted this right through a waiver under the Clean Air Act, but the Trump administration revoked it. While this lawsuit is still ongoing, the overwhelming majority of such cases against the administration have been won so far.

In recent years, more outcomes judges have become more terview that there is a greater of cases have been pro- rather likely to accept human-rights chance of making a difference than anti-environmental reguarguments and scientific eviin doing so as governments lation. Compare that to 1990- dence presented in court and have the power to regulate cit2016, where according to a 2018 are more inclined to “give a deizens, corporations, and other study published in Nature Clicision that is bolder.” levels of government. Addimate Change by McCormick, for tionally, Setzer explained that every one U.S. environmental Even so, environmental litigamany governments have a conlawsuit that led to improved or tion isn’t so easily won and has stitutional duty to look af-ter strengthened policies and laws its limitations. Robert Kagan, a the welfare of its citizens, so — for example, the 2007 case retired UC Berkeley law profesit is easier for plaintiffs to es

Massachusetts v. The Environsor, says that litigants who can tablish that the government mental Protection Agency set the show how a specific law was vimust do something rather than In recent years, more outcomes of “ olated have the best chance of the judge ruling in their favor. On the other hand, cases in which the arguments are too general or reference laws that are more vague are less likely to win. That means the success of environprove causality and attribution to a company. That constitutional argument is prominently utilized in Juliana v. U.S., which was first filed in 2015 on behalf of a group of 21 children. They are suing the cases have mental lawsuits largely depends on pre-existU.S. government for allowing and even subsidizing the use of been proing laws that target climate change; if such legislation is lacking, fossil fuels, which has caused environmental consequences that infringe upon their right rather than antilawsuits themselves cannot directly creto life, liberty, and property. In an interview, Andrea Rogers, environmental ate new laws. Additionally, climate the head attorney for the plaintiffs, emphasized that their aim precedent that the government should bear the responsibility of regulating greenhouse gases — 1.4 others had the opposite effect, where the outcome promoted more lenient climate change litigation can be costly, time-consuming, and, according to Kagan, not as good at inciting the amount of change in laws or is to challenge the system and set constitutional standards. regulation. ” “ . . . governments have a constituchange policy. In an interview, Setzer attributed this change to the numerous cases mountpolicy as lobbying and public demonstrations. tional duty to ed against the Trump administration’s deregulation efforts as well as the overall increased To maximize the effectiveness of litigation, look after the public public awareness of climate change: “There’s more awareness about climate change, about [its] causes and consequences, and judges are not immune to that.” As such, Spring 2020 / Perennial most litigants target the government. According to the policy report, 85% of U.S. environmental cases are filed against the government. Setzer notes in an in” welfare of its citizens. . . 10

Kelsey Juliana, a lead plaintiff in the climate change lawsuit against the federal government, at the Supreme Court in September. (Kevin Lamarque/Reuters) If the case is successful, that could mean massive cutbacks in the use of fossil fuels, a revision of policies and regulation, and even a flood of other lawsuits.

Juliana v. U.S. is a highly ambitious case that has experienced many delays in the past four years due to institutional roadblocks and bureaucratic stalls. “For many people who follow the case closely, the fact that the case has survived so long is already a victory,” Setzer said. Kagan also acknowledges the difficulty in winning such a case, stating that the constitutional argument is vague and courts are “reluctant to move too quickly.” Because legislative power is reserved to Congress, the courts are wary of overstepping their jurisdiction and legislating from the bench.

Is environmental litigation still worthwhile? Kagan thinks so. While lawsuits do not directly create policy change, they could bring important publicity. “The key to political action is that a lot of people care,” Kagan said. When politicians notice that many people care

“Ideally we want to see Congress passing laws that are enforced, we want to see civil society involved in projects ” on the ground.

about an issue, they are more likely to try to do something about it. Furthermore, even just the threat of being sued can be a motivator of change, as Setzer pointed out,“[Corporations] are considering now more seriously the risk of litigation because there are reputational issues and just the cost of defending the cases and how long they take.” However, environmental litigation alone is not enough. “We should still prioritize other types of action,” Setzer said. “Ideally we want to see Congress passing laws that are enforced; we want to see civil society involved in projects on the ground. We ideally don’t want to see all of these resources being spent writing petitions and paying lawyers to go to court.” Join the fight against climate change by participating in political action (such as contacting lawmakers and joining well-funded activist groups), volunteering for environmental projects, and even simply being a more environmentally-conscious consumer — all actions anybody can take without needing an attorney.