Human Rights at Home Blog

New Article: Weathering the Storm: Establishing Internally Displaced People’s Right to Affordable Housing in the Wake of Natural Disasters

Raina Hasan, Weathering the Storm: Establishing Internally Displaced People’s Right to Affordable Housing in the Wake of Natural Disasters, 31 J. L. & Pol'y 177 (February 2023). Abstract below.

In 2020, natural disasters caused more internal displacement than war; floods, storms, and wildfires caused thirty million new displacements globally, and 1.7 million in the U.S. alone. The data and history suggest that masses of people will be displaced every year and will face housing insecurity without any formal acknowledgement of their unique plight or a guarantee that internally displaced persons (“IDPs”) will have protected rights. This Note proposes that, considering the worsening climate crisis leading to more frequent and severe natural disasters, the U.S. should codify the rights of internally displaced people as laid out in the United Nations’ Guiding Principles on Internal Displacement.

In order to actualize IDPs’ right to return and resettle, the U.S. should also establish IDPs’ right to affordable housing when natural disasters force people to leave behind their homes and communities. To effectively enforce such rights, the federal government should provide more affordable housing, invest in making the existing affordable housing stock and new affordable housing developments climate resilient, and collect accurate data on IDPs to provide adequate disaster relief, taking special care not to exacerbate gentrification and surveillance concerns. Codifying the rights of IDPs would go a long way in remedying larger systemic issues such as the racial wealth gap and rampant housing insecurity, ultimately furthering environmental justice.

UN General Assembly Recognizes Human Right to Healthy Environment

By Anezka Krobot, rising 2L at St. Louis University School of Law

Last week, on Tuesday, July 26, 2022, the UN General Assembly adopted resolution 76/300 with 161 votes in favor and 8 abstentions, recognizing the human right to a clean, healthy, and sustainable environment. The UN High Commissioner for Human Rights, Michelle Bachelet, gave the following statement in support of the resolution:

“This decision reflects that all rights are connected to the health of our environment. Every person, everywhere, has a right to eat, breathe and drink without poisoning their bodies in doing so, and to be able to live harmoniously with the natural world, without constantly growing threats of ecosystem collapse and climate catastrophe. Today is a historic moment, but simply affirming our right to a healthy environment is not enough. The General Assembly resolution is very clear: States must implement their international commitments and scale up their efforts to realize it. We will all suffer much worse effects from environmental crises if we do not work together to collectively avert them now. To survive and thrive, we must invest in environmental and social protection centered in human rights; hold governments and businesses duly to account for environmental harms; empower all people to act as agents of change for a healthy environment; and recognize and uphold the rights of those most affected by environmental degradation.”

This resolution is a huge step forward for both environmental and human rights policy, but it remains to be seen whether countries will step up to make real change. As Bachelet herself said, “Today’s decision by the General Assembly marks the culmination of many years of advocacy by activists from all corners of the environmental justice movement. We know the scale of the dangers we face. If we are to protect our planet for present and future generations, it is now time for truly bold action by governments and the private sector as well.  And for all of us to stand together to make the right to a healthy environment our lived and shared reality.”

Event 7/28: Climate Change, Equity and Just Transitions: A Legal Perspective

On July 28, 2022, starting at 1:30pm EDT, the American Bar Association will host a webinar to address the economic, political and legal issues encountered, both as opportunities and obstacles, in the movement to ensure just transitions as we progress to achieving net zero carbon emissions. It will include discussions of the commitments incumbent on wealthy countries to provide resources that enable developing countries to mitigate and adapt to coming environmental challenges; and it will explore the obligations of governments, the private sector and international financial institutions to provide the means for achieving decarbonizing objectives in ways that are consistent with environmental justice, international human rights and labor standards and that support those who are most vulnerable to environmental impacts and immediate climate threats such as sea-level rise, extreme weather, and biodiversity loss.

Click here for more information and to register for this webinar. The ABA does charge for this webinar, but provides a discounted rate for ABA members and zero charge for the ABA Section on Environment members.

Event 6/9: Hybrid Celebration of United Nations World Oceans Day

On June 9, 2022, from 10am-1pm EDT, join the United Nations Division for Ocean Affairs and the Law of Sea, Office of Legal Affairs for a free event both online and in-person at the UN Headquarters in New York.  The theme of the event is REVITALIZATION: Collective Action for the Ocean, and it plans to shed light on communities, ideas, and solutions that are working together to protect and revitalize the ocean and everything it sustains.  For more information on the event, see the schedule here.

The leading topics for the day are:

• Nature-based Solutions
• Science & Innovation
• Cross-sector & Cross-discipline Collaboration
• Biodiversity & Resilience
• Local & Indigenous Knowledge
• Community & Collaborative Efforts
• Blue Economy, Responsible Management & Finance

Attendees can join in person or online. To register for this event online, click here. To register for this event in person, click here.

Celebrating World Water Day by Calling for Respect for Our Environment and Indigenous Communities

photo by Caroline LaPorte, Anishinaabe, Descendant and Associate Judge, Little River Band of Ottawa Indians; Director, Indigenous Safe Housing Center, NIWRC

By Cameron Ewing (Legal Intern), Samantha Johnson (Legal Intern), Braelyn Saumure (Student Fellow), and Tamar Ezer (Acting Director), Human Rights Clinic, University of Miami School of Law

The right to water is fundamental. As the UN General Assembly recognized, “the right to safe and clean drinking water and sanitation” is “a human right that is essential for the enjoyment of life and all human rights.” Victoria Sweet from the White Earth Band of Ojibwe echoed, “the right to resources and the right to water are critical to the right to life.”

Today, as we celebrate World Water Day, we must take a hard look at how we’re treating the environment, as well as Indigenous communities who are frequently its defenders. All too often, the construction of gas pipelines threatens the availability, accessibility, and quality of water, required under international human rights law.

Moreover, human rights law recognizes a link between the right to water and culture. While domestic uses of water take priority, the UN Committee on Economic, Social and Cultural Rights affirms the importance of water for “enjoying certain cultural practices” and securing a livelihood. Non-consumptive uses of water crucial to Indigenous communities include its centrality in a biological habitat, its spiritual value as a source of healing, and its aesthetic value.

Indigenous advocates point to the environmental degradation pipelines cause on Indigenous lands. Angeline Cheek, a Fort Peck tribal member and ACLU organizer in Montana, stated, “pipelines cross our reservations, causing destruction to our environment and our people. We can’t live without water, and you cannot replace a life.” A teenage Indigenous protest leader explained, “When the pipeline breaks, it would not only affect us as a people, but the animals and aquatic life would be impacted too.  Basically, everything that my people value and care for is at great risk of being harmed.”

The construction and operation of the pipeline also brings violence, including sexual violence, against members of nearby Indigenous communities. The hundreds—or even thousands—of male transient workers brought in to work on the pipeline construction, often housed in temporary housing communities referred to as “Man Camps,” have targeted Indigenous communities and women. Studies of the Bakken oil region have noted a 75% increase in sexual assaults and a 53% increase in violence committed by strangers that coincided with the oil boom and the influx of “well-paid oil and gas workers, living in housing units referred to as Man Camps.”

Even worse, these perpetrators often face no repercussions for their actions. Local infrastructure is strained from the influx of workers, without the provision of increased resources to health services and law enforcement, who already have large geographic regions to cover. Additionally, there is an enforcement loophole with Indian tribes lacking jurisdiction to prosecute non-Indigenous defendants. This requires reliance on the federal government, which often fails to take action. There is thus a general lack of accountability, and crimes are committed with impunity.

While the Violence Against Women Act (VAWA) helps address some jurisdictional problems, this legislation does not go far enough to protect Indigenous Peoples from non-native offenders. VAWA only authorizes “special domestic violence criminal jurisdiction” to tribal courts for offenders who commit “(1) domestic violence, (2) dating violence, or (3) violate a protective order.” These limitations mean that the non-native offender must have connections to the tribe, which is often not the case for violence perpetrated by workers at Man Camps given their temporary nature. Furthermore, the special jurisdiction does not include the crime of sexual assault when unconnected to domestic or dating violence.

Halting the Keystone Pipeline is a step in the right direction. The pipeline was set to traverse nearly 875 miles of rural land in the Northern U.S., crossing major waterways, such as the Missouri and Yellowstone Rivers, and passing through Rosebud Sioux and Fort Belknap Indian Community lands in Montana, threating sensitive ecological and cultural areas. Years of legal battles and protests from Indigenous Peoples were finally heard when the Biden Administration’s Executive Order conceded that the Keystone XL Pipeline “disserves the U.S. national interest” and revoked its permit, ending construction.

Indigenous Peoples have widely praised the Order. Angeline Cheek noted, this Order “is about honoring our ancestors’ treaties and protecting our natural resources.” Faith Spotted Eagle, founder of the Brave Heart Society and a member of the Ihanktonwan Dakota nation, remarked, “victory ending the KXL pipeline is an act of courage and it gives tribes and Mother Earth a serious message of hope for future generations as we face the threat of climate change.”

Now, we need to build on Biden’s Executive Order and put in place better policies. International human rights law requires the “free, prior, and informed consent” of Indigenous Peoples as a prerequisite for use of Indigenous land and resources. Meaningful consultation is critical, but it is not enough. There must also be consent. Additionally, Indigenous Peoples need the resources to invest in infrastructure, as well the authority to prosecute non-Indigenous perpetrators on their lands, eliminating the jurisdiction loophole.

As we celebrate World Water Day, let’s move towards a greener and safer future, respecting both the environment, as well as the communities physically and culturally connected to the earth’s resources.

Past Time for Respect for Indigenous Peoples and the Environment

By: Tamar Ezer, Acting Director & Braelyn Saumure, Student Fellow, Human Rights Clinic, University of Miami School of Law

Despite the challenges of 2021, it closed with some important milestones. At long last, the U.N. Human Rights Council recognized “the human right to a clean, healthy and sustainable environment” and appointed a Special Rapporteur to focus on rights in the context of climate change. Additionally, the U.S. officially designated Indigenous Peoples’ Day on October 11. President Biden’s proclamation acknowledges “the centuries-long campaign of violence, displacement, assimilation, and terror wrought upon Native communities” and celebrates Indigenous Peoples’ “resilience and strength” and “immeasurable positive impact . . . on every aspect of American society.”

Violence against Indigenous Peoples and nature is deeply intertwined. For generations, Indigenous lands have been exploited as a “hunting ground” for resources with colonialism propped up by racial and gender hierarchies. In the U.S., Native American and Alaska Native women experience sexual assault at a rate 2.5 times higher than other women, with 86% of perpetrators non-Native men. For example, the oil boom in the Bakken region brought a 75% increase in sexual assaults and a 53% increase in violence with the influx of hundreds of transient male workers, housed in “Man Camps” near Indian territories. Moreover, with strained infrastructure and Indian tribes lacking jurisdiction to prosecute non-Indian defendants, there is often no accountability. Indigenous leaders have highlighted the link between sovereignty over land and bodily autonomy.

Against this backdrop of abuse, the climate crisis is displacing Indigenous communities at increasing rates and leading to economic instability, land disputes, and disruptions in social safety nets, contributing to increased risk of gender-based violence. Moreover, Indigenous leaders have been at the forefront of sounding the alarm on climate change and may also experience violence as retaliation for their actions as human rights defenders confronting environmental degradation. Further, the COVID-19 pandemic has disproportionately impacted Indigenous Peoples, aggravating preexisting inequalities and resulting in heightened rates of infection and  increased environmental degradation, economic insecurity, and gender-based violence, threatening Indigenous cultures.

Our Human Rights Clinic at the University of Miami School of Law has had the opportunity to document these intersections in collaboration with Indigenous partners and the Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic at Cardozo School of Law. A series of reports address the implications of gender and environmental violence for Indigenous rights. This includes a short synopsis report, a longer human rights framework, and case studies focused on Pipelines and Man Camps in the Northern United States; Canada’s National Inquiry into Missing and Murdered Indigenous Women; and Environmental Destruction, Land Dispossession, and Gender-Based Violence Against Indigenous Peoples in Brazil, shared with U.N. Committee on the Elimination of Discrimination against Women and various Special Rapporteurs to inform guidance on rights in connection to Indigenous women and land.

Indigenous women can lead the way in addressing the twin crises of gender-based violence and climate injustice. They have borne the brunt of these crises for generations and, in many communities, serve as keepers of seeds and cultural knowledge. As Victoria Sweet (White Earth Band of Ojibwe, NoVo Foundation) told the Human Rights Clinic, “We don’t need to be saved; we need to be empowered to save ourselves.” 

Moreover, Indigenous women can share important lessons for us all. As Aimée Craft (Anishinaabe-Métis; University Research Chair, University of Ottawa) stated, “If we can understand environmental justice through the lens of having a relationship or kinship with our mother, then we will be back to a position of being able to live in sustainable ways.”

Event 2/10: The 12th Annual “Live from L”: Climate Change

On February 10, 2022, join “Live from L” an annual program featuring members of the U.S. Department of State Office of the Legal Adviser discussing a topic of current interest. The theme of this year’s program is Climate Change – Time permitting, the audience will be given the opportunity to ask questions at the end of the webinar.

A non-CLE program presented by the ABA Section of International Law

Co-Sponsors: The George Washington University Law School and The American Society of International Law

Speakers:

• Richard C. Visek, Acting Legal Adviser
• Kathryn Youel Page, Assistant Legal Adviser for Oceans, International Environmental & Scientific Affairs
• Andrew Neustaetter, Attorney-Adviser, Office of Oceans, International Environmental & Scientific Affairs
• Anna Melamud, Attorney-Adviser, Office of Human Rights and Refugees
• Nathan Nagy, Attorney-Adviser, Office of Oceans, International Environmental & Scientific Affairs

Moderator:

• Rosa Celorio, Associate Dean for International and Comparative Legal Studies and Burnett Family Professorial Lecturer in International and Comparative Law and Policy, George Washington University Law School

To register for this event, click here.

Progress on the Human Right to Access to a Healthy Environment

The U.N. Human Rights Council recognized for the first time on Friday, October 8, 2021, that having a clean, healthy, sustainable environment is a human right. Four countries abstained: Russia, India, China, and Japan.   

The United States is not currently a member of the Council, so did not participate in the vote.  However, Inside Climate News reported that the Biden Administration opposed the resolution behind the scenes, seeing it as an extension of the U.S.'s historic opposition to recognition of economic, social and cultural rights.

The U.N. Human Rights Council last week also established a new Special Rapporteurship on the promotion and protection of human rights in the context of climate change.  

For a great analysis of the Council's decision and other recent developments on the right to a healthy environment, see Maria Antonia Tigre's blog post released earlier today here.  

Event: 10/8 UGA School of Law Presents "The 1972 Stockholm Declaration at 50: Reflecting on a Half-Century of International Environmental Law"

On Friday October 8, 2021, the University of Georgia School of Law's Dean Rusk International Law Center will host its annual Georgia Journal of International and Comparative Law conference. The 1972 United Nations Conference on the Human Environment produced the "Stockholm Declaration," an environmental manifesto that forcefully declared a human right to environmental health and birthed the field of modern international environmental law. In celebration of its 50th anniversary volume, the Georgia Journal of International and Comparative Law is convening this event to reflect on the first 50 years of international environmental law and the lessons this history may hold for the future. The conference organized according to the three themes of Principle 1 of the Stockholm Declaration, including panels on the rights-based approach to environmental protection; anti-racism, decolonization, and environmental protection; and international environmental law’s future. It will feature a keynote address by Dinah Shelton, the Manatt/Ahn Professor of International Law Emeritus, George Washington University School of Law.

Details and registration: http://www.law.uga.edu/gjiclfall2021. 

New White House Environmental Justice Advisory Council

Congratulations to the members of the newly established White House Environmental Justice Advisory Council! 

Establishing the White House Environmental Justice Advisory Council (WHEJAC) is a historic step towards expanding environmental human rights in the U.S. and  I am so pleased to see human rights friends and advocates Catherine Flowers, Michele Roberts, Juan Parras, Dr. Robert Bullard, and Dr. Beverly Wright  appointed as WHEJAC members!

The new WHEJAC is tasked with increasing the Federal Government’s efforts to address environmental injustice and its efforts are to include "a broad range of strategic, scientific, technological, regulatory, community engagement, and economic issues related to environmental justice." WHEJAC held its first meeting on March 30, 2021. Be on the look out for future WHEJAC meetings to be announced here.

This news follows shortly after UN human rights experts again raised concerns about "Cancer Alley" in Louisiana in a joint statement released last week.  In that joint statement, several UN human rights experts applauded Biden's executive order on Tackling the Climate Crisis, which establishing WHEJAC.

 

Event: Role for Human Rights Institutions in Support of Rights-Based Implementation of the Paris Agreement

On March 24, 2021, from 9am-11am ET, the UN Office of the High Commissioner for Human Rights, Center for International Environmental Law, Earth Justice, and Natural Justice, are hosting a high-level virtual meeting to discuss the role for human rights institutions to support rights-based implementation of the Paris Agreement. 

Discussants will exchange ideas for concrete actions and commitments that could be achieved in 2021 to promote human rights-based climate responses and to promote cooperation between relevant actors and institutions. This event will take place in the form of two consecutive discussions bringing together a diverse group of high-level climate decision makers as well as representatives from key human rights bodies and relevant international fora.

For more information and to register to attend this virtual meeting, please click here. 

The Earth Gives Us A Chance

The skies over Wuhan have dramatically reduced air pollution.  Maps show a significant reduction in nitrogen dioxide since factories closed and transportation restricted.  NASA maps from January 1 and February 25, 2020 show a 30% drop in NO2, which is created through the use of fossil fuels.  "According to NASA scientists, the reduction in NO₂ pollution was first apparent near Wuhan, but eventually spread across the country." 

“This is the first time I have seen such a dramatic drop-off over such a wide area for a specific event,” said Fei Liu, an air quality researcher at NASA’s Goddard Space Flight Center. Liu recalls seeing a drop in NO₂ over several countries during the economic recession that began in 2008, but the decrease was gradual. Scientists also observed a significant reduction around Beijing during the 2008 Olympics, but the effect was mostly localized around that city, and pollution levels rose again once the Olympics ended.

Italy is experiencing similar environmental improvements. Satellite photographs show a decrease in air pollution.  Industrialized northern Italy, in particular, was plagued with serious pollution since well prior to the Coronavirus explosion.  For decades, cruise ships have long polluted the bay leading to the canals.   And boat traffic in the canals is vastly down.

These environmental improvements may be temporary.  Indications are Venice canals have reduced sharply pollution levels. Now residents report that for the first time in decades they can see fish swimming in the canals.  However, there is no evidence that governments will change their environmental habits or tie any stimulus packages to environmental improvements.   Indeed, some of the biggest polluters, the airlines,  may be recipients of large influxes of federal funds. To date, no government has tied stimulus funds to changeover to alternative energy systems.

The earth is offering us a chance to repair environmental harms.  Is anyone listening?

 

US Court Dismisses Children's Human Rights Lawsuit

Juliana v US is a lawsuit brought by 21 youth claiming violations by the US government of their right to a clean environment.  Specifically, the lawsuit claimed violations of the right to a safe climate.   The 9th circuit court of appeals dismissed the suit but not without recognizing the severity of the climate crisis.  The court acknowledged that young people are the most likely to suffer because of rising temperatures.  The opinion was decided 2-1 with the majority stating that the legislature must act to implement environmental protections.  

Our Children's Trust supported the Plaintiffs in their lawsuit.  In their statement, they noted that the decision was two to one with the dissent noting that "Judge Staton would hold that the youth plaintiffs have the standing to challenge the government’s conduct, have articulated claims under the Constitution, and have presented sufficient evidence to press those claims at trial. "

Counsel for the youth will ask the Court for a review.

The decision fails to acknowledge the human right to a healthy climate and the state's role in creating environmental damage and taking responsibility for the damage.

Law Professors Pledge to Encourage Environmentally Sound Practices

From Prof. Stacie Strong, University of Missouri of Missouri School of Law

 

In honor of International Day of Climate Action (October 24), a group of law professors have announced the Pledge to Reduce Academic Marketing Waste, which seeks to address the routine and indiscriminate use of paper-based flyers, newsletters, offprints and postcards by law professors and law schools.  Most of this material is discarded without ever being read.  However, law schools continue to produce and distribute these materials in an effort to increase or maintain their national and international rankings.

 

Continuing this practice is unconscionable in the current era, given the availability of electronic marketing options.  Limiting or eliminating reliance on paper-based materials will not only reduce the destruction of forests, it will also reduce carbon emissions generated as part of the printing and transportation processes.

 

Given the competitive nature of higher education, it is unlikely that individual law schools will act on their own initiative to stop or significantly curtail paper-based marketing for fear of risking their rankings.  However, positive results may be obtained by coordinating actions across numerous law schools. 

 

Individual faculty members as well as law schools both inside and outside the United States are therefore invited to join the Pledge to Reduce Academic Marketing Waste by emailing Prof. S.I. Strong (strongsi@missouri.edu) to indicate their support.  The names of individual law professors and institutions who have adopted the Pledge will be published on a webpage housed at Pace University.  That webpage is regularly updated to show increased support for this initiative.

 

The language of the Pledge is as follows:

 

We, the undersigned, hereby pledge to reduce academic marketing waste, individually and institutionally, by limiting or eliminating the production and transmission of paper-based marketing materials and/or by encouraging the relevant decision makers at our institutions to adopt actions and polices consistent with that goal.  Reducing academic marketing waste can take a variety of forms, including but not limited to:  (1) reducing the size of paper-based marketing materials (eg, replacing newsletters with postcards); (2) reducing the frequency of paper-based marketing initiatives; (3) adopting an opt-in rather than opt-out approach to paper-based mailing initiatives; (4) replacing some or all paper-based marketing with electronic or other forms of marketing. 

 

Please feel free to forward this message to anyone at your institution or in your network who you think might be interested in joining the Pledge.  The current signatories can be seen here -

https://law.pace.edu/academics/juris-doctor-program/environmental-law-program/pledge-reduce%C2%A0academic-marketing-waste - with more are being added all the time.

Now Is The Moment

 

Guest Blogger Rebecca Bratspies, Professor of Law at CUNY School of Law and the founding director of the Center for Urban Environmental Reform, contributes this post which was originally published on the Environmental Law Profs Blog.

 

Now is the moment!

The choreographer George Balanchine is famous for telling his dancers

“why are you holding back? What are you saving for—for another time?  There are no other times. There is only now. Right now.”

While dance and environmental law are generally not considered the most closely aligned fields, I have been thinking about Balanchine’s word’s lately as I try to respond to the current administration’s approach to climate change, and to environmental law more generally.

On October 6, 2018, the Intergovernmental Panel on Climate Change issued a report titled Global Warming of 1.5°C. This report underscores the vital importance of ‘now” that Balanchine was trying to convey to his dancers. The report emphasized that the world is not yet committed to catastrophe—it is still possible to keep anthropogenic climate change below 1.5°C of warming. However, there is only a small window of time in which we can change our trajectory and limit the damages of climate change.  Thus, the IPCC unambiguously states that the need for immediate action is urgent and that averting catastrophe will require “rapid and far-reaching transitions” that “are unprecedented in terms of scale.” There are no other times.  There is only now.  Right now!

The United States national government seems set on preventing any such transition. Announcing with great fanfare that the United States would withdraw from the Paris Agreement, the Trump Administration is on the wrong side of history.  Climate deniers occupy key executive branch positions. As a result, the government alternates between bolstering the coal industry, undoing laws preventing methane and HFC emissions, and reducing fuel efficiency standards. Indeed, the Trump administration recently used the prediction that disastrous warming was inevitable as a reason to allow increased carbon emissions from vehicles. Noting that the proposed rollback was “projected to result in only very minor increases in global CO2 concentrations and associated impacts”the administration rationalized that any such restrictions were too small to matter because climate change is a global issue. This was, of course, precisely the argument rejected in Massachusetts v. EPA. In that case, EPA had argued that because greenhouse gas emissions caused widespread harm, there was no “realistic possibility. .  .that the relief petitioners seek would mitigate global climate change and remedy their injuries.”  The US Supreme Court flatly rejected this contention noting that “the United states transportation sector emits an enormous quality of carbon dioxide” and that restricting these emissions would be an incremental step that might reduce the risk to some extent.

Yet, even as the federal government backslides, large portions of the country are forging ahead. All eyes are on the cities, states, businesses and other organs of civil society that have pledged to take action on their own. The 3600 member strong “We’re Still In” coalition, for example, has taken up the task of achieving with the United States’ Nationally-Determined Commitment to the Paris Agreement without federal leadership. Hundreds of subnational and private actors have submitted pledged to reduce their carbon emissions. These commitments put us on track to come close to achieving our Paris obligations. And, technology is rapidly leaving carbon behind.  Even in the US, renewables and electric cars are burgeoning, prompting the Climate Action Tracker to revise the United States’ projected emissions downward despite federal intransigence. “There are no other times.  There is only now.  Right now!”

Moreover, the rest of the world seems committed to a greener future. A Dutch appeals court just ordered the Netherlands to rachet up its climate ambitions. A host of similar lawsuits around the globe are pushing other countries to do the same. These lawsuits are changing the public narrative. Together with the IPCC report emphasizing that we are not yet committed to 1.5 C, the message is being heard: “There are no other times.  There is only now.  Right now!”

Perhaps the greatest signal that we may be experiencing a sea change is the emerging consensus on the human right to a healthy environment. On October 25, 2018, the UN Special Rapporteur for Human Rights and the Environment addressed the United Nations General Assembly for the first time. While the United States did not attend, many other countries did. Costa Rica, Switzerland, and Slovenia spoke strongly in favor of officially recognizing a human right to a healthy environment. Russia prefaced its remarks by stating that the Russian Federation recognized the right to a healthy environment. France has proposed its Global Compact for the Environment, which it describes as a “common road map for transforming our world.”

Together these developments suggest that there is a moment open for action. The United States midterm elections may give us a hint of how the federal government will move forward from here. Yet, regardless of federal action or inaction, we can seize the chance, we can remake our world. Now is the time to think big, to think beyond the narrowing limits of existing environmental law to what a truly sustainable society would entail. There are no other times.  There is only now.  Right now!

Trump Deals Another Blow to Native American Tribal Sovereignty

By Lauren Carasik

On December 4, President Trump announced that he would dramatically downsize two Utah
National Monuments - Bears Ears by 85 percent and the Grand Staircase-Escalante by roughly half. The reduction, totaling two million acres, represents the biggest rollback of federal designated land protection in U.S. history. The Bears Ears monument is home to an estimated 100,000 Native American archeological and sacred sites. President Obama designated Bears Ears in 2016, while the Grand Staircase-Escalante was protected by President Clinton in 1996, both under the Antiquities Act, a 1906 law that allows presidents to unilaterally set aside public lands to protect “objects of historic and scientific interest.” In contrast, National Parks are designated by acts of Congress.

The announcement came a week after Trump sparked controversy during a ceremony honoring World War II veteran Navajo code talkers by reviving his feud with Senator Elizabeth Warren, indirectly referring to her as “Pocahontas,” an intended slur that offended the families of the code talkers. Critics also questioned the optics of holding the ceremony against the backdrop of a portrait of Andrew Jackson, whose bloody enforcement of the Indian Removal Act caused thousands of Native American deaths.

Hours after the announcement, opponents hit back. A coalition of five Native American tribes - Hopi, Navajo Nation, Ute Mountain Ute Tribe, Pueblo of Zuni and Ute Indian- filed suit to block the move. According to Native American Rights Fund (NARF) attorney Matthew Campbell, “Bears Ears is one of the most important places for Indian Country, and that is why Indian Country came together to advocate for this important place. Trump’s attack on Bears Ears is an attack on all of us, and we will fight to protect it.” The tribes argue that the Antiquities Act allows a president to designate but not to revoke monument status, and that Trump has exceeded his authority by curtailing the monuments so sharply that he has in effect eliminated their protections. Trump’s move is not unprecedented – previous presidents have made much smaller reductions, but their right to do has never been tested in court. The move bodes ill for Trump’s respect for Native sovereignty. As NARF points out, “This latest action follows on the heels of the Administration’s other actions against Tribes: (1) issuing the permit to the Dakota Access Pipeline, (2) issuing the permit to the Keystone XL, and (3) revoking the Executive Order to protect the Bering Sea on April 28th. Tribes vigorously opposed all of these efforts. The Administration uses the term “tribal sovereignty” but clearly does not understand what that means.”

 The same day, Earthjustice filed suit on behalf of a group of environmental and conservation organizations, including the Wilderness Society, the Natural Resources Defense Council, the Sierra Club and seven others, claiming that the decision to shrink the size of Grand Staircase-Escalante was unlawful. “While past presidents have used the Antiquities Act to protect unique lands and cultural sites in America, Trump is instead mangling the law, opening this national monument to coal mining instead of protecting its scientific, historic, and wild heritage,” said Earthjustice’s attorney Heidi McIntosh.

 The outcome of the litigation will have far-reaching implications for the preservation of natural resources, including whether the designation of national monument status will be rendered effectively meaningless if it can be easily reversed by subsequent administrations. In making the announcement, Trump said “public lands will once again be for public use.” But as NARF’s Executive Director John Echohawk sees it, the reality is that the lands will provide private benefits instead, with potentially damaging environmental and cultural consequences. He said “It is clear that Trump’s attack on Bears Ears is motivated by his desire to undo decisions made by his predecessor, but also to grant political favors to the Utah politicians who would see our sacred lands plundered for short-term economic gain that could come from drilling for oil and mining for uranium.”

 

UN Framework Convention on Climate Change Enjoys Ongoing US Support - Just Not From The President

The Earth does not have an unlimited ability to sustain its inhabitants.  President Trump either does not care or does not understand this urgency.

Ten governors have pledged to continue compliance with the 2015 Paris Agreement despite the announcement of recent US plans to withdraw.  The states have formed the bipartisan US  Climate Change Alliance.  The Alliance pledges to reach the goal of reducing greenhouse emissions by 26-28% of 2005 levels by 2025.  This would ensure compliance with the goals of the Clean Power Plan, a plan that is now under review per the order of the President.

The governors join mayors, companies and universities that have organized and plan to file reports with the UN in lieu of those typically filed by member national governments.  The collaborative was the idea of former NY Mayor Bloomberg who has pledged $15 million of his own money to the replace the US contribution that would have been made to fund the UN's costs in operating the UN Framework Convention on Climate Change. 

Local US advocates have assumed leadership in the human rights movement.  This was a topic of discussion at the recent HR conference held at Columbia University.

 

 

 

 

 

UN expert finds flawed consultation process for Dakota Access Pipeline

by Lauren Carasik

On March 3, Victoria Tauli-Corpuz, the UN Special Rapporteur on the rights of indigenous peoples, issued an End of Mission Statement, following her 10 day visit to the US to study the human rights situation the nation’s indigenous peoples, with a focus on energy development projects. She lamented the failure of the government to engage in meaningful consultations with tribes, concluding that "The legislative regime regulating consultation, while well intentioned, has failed to ensure effective and informed consultations with tribal governments. The breakdown of communication and lack of good faith in the review of federal projects leaves tribal governments unable to participate in dialogue with the United States on projects affecting their lands, territories, and resources."

The UN expert singled out the flawed process with respect to the Dakota Access Pipeline:

“Many indigenous peoples in the United States perceive a general lack of consideration of the future impacts on their lands in approving extractive industry projects in particular, and a lack of recognition that they face significant impacts from development of not just their own, but neighbouring resources as well. In the context of the Dakota Access Pipeline, the potentially affected tribes were denied access to information and excluded from consultations at the planning stage of the project. Furthermore, in a show of disregard for treaties and the federal trust responsibility, the Army Corps approved a draft environmental assessment regarding the pipeline that ignored the interests of the tribe… Although the final environmental assessment recognized the presence of the Standing Rock Sioux Tribe five hundred meters away, it dismissed the risks to the reservation and failed to mention any of the other tribes that traditionally used the territory. Without an adequate social, cultural or environmental assessment, and the absence of meaningful consultation with or participation by the tribes, the Corps gave multiple domestic authorizations permitting the construction of DAPL.”

While she did recognize some positive steps towards indigenous sovereignty and self-determination, Tauli-Corpuz expressed deep concern over President Trump’s executive actions on the Dakota Access and Keystone XL pipelines, and recommended “that for any extractive industry project affecting indigenous peoples, regardless of the status of the land, the United States should require a full environmental impact assessment of the project in consideration of the impact on indigenous peoples’ rights.”

In order to move forward, the UN expert emphasized the need for reconciliation:

“The issues surrounding energy development underscore the need for reconciliation with indigenous peoples in the United States. Tribal leaders and representatives indicate that they are interested in engaging in a program of reconciliation to remedy the harms they have faced and improve the government-to-government relationship going forward. Such a program would acknowledge the historical wrongs inflicted upon indigenous peoples in the United States and confront systemic barriers that prevent the full realization of indigenous peoples' rights.”

Standing Rock Tribes and the IACHR

Standing Rock tribal members protesting the pipeline placement have petitioned the Inter-American Commission on Human Rights.  According to a report on International Law Grrls, "The Standing Rock Sioux Tribe, Cheyenne River Sioux Tribe, and Yankton Sioux Tribe, with Earthjustice and the American Indian Law Clinic – UC Boulder, submitted a Request for Precautionary Measures Pursuant to Article 25 of the IACHR Rules of Procedure Concerning Serious and Urgent Risks of Irreparable Harm Arising Out of Construction of the Dakota Access Pipeline to the IACHR."

Among the relief sought is a request to end state violence at the protest site and ensure the safety of those engaging in "peaceful prayer."  The Standing Rock website has information on the environmental and other issues as well as a link to the petition.  A copy of the petition may be found here.  

While the press was prompt in announcing that on December 4, the Army Corps or Engineers determined that it would not grant a permit for the pipeline route to include running underneath the local tribe's water supply, the connrection to the power of the tribes' IACHR  petition was not reported.

 

 

 

Hope for the Planet- Enhancing the Montreal Protocol

The 28th Meeting of the Parties (MOP 28) to the Montreal Protocol on Substances that Deplete the Ozone Layer met in Rwanda last week.  Among the discussion was the use and misuse of hydrofluorocarbons (HFC).    The related working group met immediately prior to the general meeting in order to write draft policy on HFC.  The use of HFC has environmental benefits.  Hydrofluorocarbons can substitute for chemicals that deplete the ozone layer.  Uncontrolled use of HFC leads to climate warming.  The meeting focused on ways to manage the use of HFC, which would prevent a rise in world temperature by more than half a degree Celsius by the end of the century.

On Saturday, 170 nations signed an agreement limiting the use of HFC in air conditioners and refrigerators. The agreement amends the Montreal Protocol, a pact agreed to so that unified actions could take steps to close the hole in the ozone layer.  At that time countries agreed to ban the use of chlorofluorocarbons (CFC). 

The agreement exemplifies the UN's best. Nations working together to create solutions. The agreement acknowledges that poorer nations will take longer to implement HFC reduction. And scientists say slow implementation is insufficient to avert some warming. None of that takes away from the fact that 170 countries acknowledged the seriousness of the warming crisis and acted together to help save our planet.