Marriage Today, Climate Tomorrow?

Is it time to pursue global warming prevention in the courts?

Six years ago, when David Boies and Ted Olson announced that they would file a lawsuit challenging Proposition 8, the ballot measure that banned same-sex marriage in California, progressives were nervous. An article in Mother Jones characterized the response this way:

The country’s major legal groups defending gay rights, including the ACLU and the Lambda Legal Defense and Education Fund, don’t think Olson is doing them much of a favor. They are upset about the lawsuit, in large part because they think it will fail.

It wasn’t time yet. The federal bench was too conservative. Be patient, they said. Someday the circumstances will be right.

Boies and Olson didn’t listen to the naysayers and achieved a partial victory, wiping Proposition 8 off the books in federal district court and winning an affirmance in the Ninth Circuit, only to have the Supreme Court in Hollingsworth v. Perry duck the substantive issue of whether same-sex marriage bans are constitutional or not.

Then last week, exactly two years to the day after Hollingsworth, the Court made same-sex marriage the law of the land. It’s official: same-sex marriage bans violate the 14th Amendment. Longtime gay rights champion Mary Bonauto achieved total victory in Obergefell v. Hodges. (I’ve called Bonauto perhaps the most successful public interest lawyer in the country — and now that title might have to be made official.)

It was time. The circumstances were right.

Now that that’s been settled, there’s another issue waiting in the wings that demands action but nevertheless seems to have progressives just as flummoxed as they were about same-sex marriage six years ago. It’s climate change.

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And what an issue it is. While the country takes a series of incremental steps to reduce carbon emissions and slow climate change, the problem keeps getting worse. I won’t take you through the usual parade of horribles here, but suffice to say the parade is long and the horribles are getting horribler by the year.

Before I continue, a side note: if you’re inclined to doubt that climate change is occurring as a result of human activity, I’d respectfully suggest that you consider whether your understanding of the issue is actually superior to the expertise of the 97% of climate scientists who accept that premise as scientific fact.  We’ve seen what happens when scientists try to pretend they’re lawyers; it’s no prettier when lawyers pretend they’re scientists.

Anyway. Is there more that lawyers could be doing in court to address climate change?

I think the answer is probably yes. It’s just a matter of identifying a winning strategy. Whatever strategy may eventually take the day is probably something that seems far-flung right now. After all, just six years ago the idea that the Supreme Court might find that the 14th Amendment protects same-sex couples’ fundamental right to marry was seen as a major stretch by some.

But there are models that lawyers could try to bring to the United States. One possibility is to follow the lead of a recent case out of the Netherlands. Like the United States, the Netherlands is a signatory to the 1992 United Nations Framework Convention on Climate Change. The Convention sets a goal of returning “anthropogenic emissions of carbon dioxide and other greenhouse gases” to 1990 levels, and lays out some broad mandatory duties to that end. For example, signatory states “shall… formulate [and] implement… measures to mitigate climate change by addressing anthropogenic emissions… and measures to facilitate adequate adaptation to climate change.” The Convention is perhaps best known, though, for setting up the framework that has governed climate negotiations at Kyoto and Doha, and that will govern the upcoming negotiations in Paris.

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The plaintiffs in the Dutch case of Urgenda v. Netherlands relied on the Convention (and other treaties and international agreements of limited significance within the United States) to argue that the Dutch government had an obligation to set more aggressive greenhouse gas emission targets. And a Dutch court agreed with them.

Bringing a case like Urgenda in the United States would pose plenty of hazards: Is the Convention self-executing? Even if so, are its obligations clear enough to enforce?  Perhaps the treaty can’t directly support a lawsuit and its principles would have to inform the application of some other law or doctrine — the Dutch decision, for example, draws heavily on the tort of negligence (probably a non-starter when it comes to seeking major national change in the United States). Or maybe thinking along international law lines is all wrong to begin with.

I don’t know. But someone out there might be able to consider these questions and find the path forward. For the everyone’s sake, I hope so. And after Obergefell, I don’t consider that hope entirely unfounded — it’s time.


Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.