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Road to Copenhagen, Part 6: Tragedy of the commons vs. action by the uncommon

By Bill Becker on November 9, 2009 at 9:55 pm

"Road to Copenhagen, Part 6: Tragedy of the commons vs. action by the uncommon"

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Members of Congress are the custodians of a sacred trust: to protect the vitality and integrity of the extraordinary experiment the Founders began.  For example, the debate about climate change isn’t just about polar bears and energy prices. It’s about whether a free people will be a responsible people, a capitalist economy will be a caring economy and a democracy will protect the rights to life, liberty and the pursuit of happiness for everyone, even those not yet born.

Some of this sacred trust is codified in the Constitution and the Bill of Rights. Some is unwritten and implied. And although the Constitution dictates that we keep government and religion separate, there are places in public policy where secular values and moral values overlap. Stewardship of nature and its resources – called “creation care” in religious circles – is one of those places.

Government’s stewardship responsibility is recognized in the body of laws past congresses developed once we realized that burning rivers, poisoned water, dangerous air, carcinogenic fish and toxic wastes were not in the national interest.  In the  landmark National Environmental Policy Act, for example, Congress declared:

It is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may . . . fulfill the responsibilities of each generation as trustee of the environment for succeeding generations . . .

Some legal experts believe public officials have a fiduciary duty to protect the commons – the air, soil, water and forests on which we all depend.  Prof. Mary Wood at the University of Oregon law school champions the idea of an “atmospheric trust doctrine” under which government officials are held legally responsible for failing to reduce carbon emissions. According to research commissioned by the Presidential Climate Action Project and conducted by the University of Colorado Law School, that type of legal accountability doesn’t exist in federal statutes today. But Wood argues that the common law trust principle underlies the statutes, and the courts should enforce it:

Such litigation rests on the premise that all governments hold natural resources in trust for their citizens and bear the fiduciary obligation to protect such resources for future generations. The courts have the ability to enforce this fiduciary obligation to reduce carbon at all levels of government”¦

Two-thirds of the greenhouse gas pollution being emitted by the United States is in compliance with government-issued permits, Wood says.  That means government is not fulfilling either its fiduciary or its moral responsibility in regard to climate change and its profoundly destructive impacts. Yet in past court cases, Wood says, we can find the seeds of an atmospheric trust doctrine. For example, in a 1982 case involving a railroad and the State of Illinois, the U.S. Supreme Court ruled:

The State can no more abdicate its trust over property in which the whole people are interested”¦than it can abdicate its police powers in the administration of government and the preservation of peace”¦

The Philippines Supreme Court, whose opinions might be less important to us in other countries if the court weren’t discussing a global issue and basic morality, said it even better in a ruling about logging in an ancient forest:

These basic rights need not even be written the Constitution for they are assumed to exist from the inception of humankind”¦(or else) the day would not be too far when all else would be lost not only for the present generation, but also for those to come – generations which stand to inherit nothing but parched earth incapable of sustaining life.

On stewardship, the faith and environmental communities have found common ground and common cause in urging governments to address climate change. Among the scores of signatories to the Interfaith Declaration on Climate Change, for example, are the Dalai Lama and Herman Daly, Greenpeace and the World Council of Churches, Bill McKibben and representatives of the Jewish, Christian, Muslim, Baha’i, Quaker, Buddhist and Hindu traditions.

Scientists, academics and religious leaders also have found common ground, expressed in the statement a group of leading religious and science leaders sent to President Bush and Congress in January 2007. One of the scientists, Harvard’s Eric Chivian, explained:

We (science and religious leaders) share a very deep reverence for life on earth, whether that life was created by God or evolved over billions of years, it exists, is sacred to all of us, and is being endangered by human activity. It doesn’t matter if we are liberals or conservatives, Darwinists or Creationists, we are all under the same atmosphere and drink the same water and will do everything we can to work together to solve these problems.

Last Thursday, the Secretary General of the United Nations, Ban Ki-moon, addressed an eclectic gathering of religious leaders at Windsor Castle in London, telling them “you are the leaders who can have the largest, widest and deepest reach” in educating people about climate change. The Economist covered the meeting and reported:

People close to Mr. Ban say he is frustrated by the reluctance of politicians to stake political capital in next month’s Copenhagen meeting; perhaps spiritual leaders are his last hope.

Will morality or politics-as-usual prevail on the issue of global warming? In Congress, the fate of climate legislation is being played out in a contest between morality and money. That brings us back to money-changers in the temple of democracy.

The Center for Responsive Politics reports that 2,225 lobbyists from energy companies now are working the Hill to influence climate legislation, outnumbering environmental lobbyists nearly 5 to 1.  Spending by lobbyists is on record pace this year, with the oil, gas and utility industries outspending alternative energy industries 10 to 1. In other words, the dominant army of lobbyists represents companies that produce and burn carbon-intensive fuels, protecting their perceived right to pollute and to profit from it.

Meantime, new data from the Federal Election Commission indicates that oil and gas interests already have contributed $6.3 million to candidates for federal office in the 2010 election cycle, with the election still a year away. Electric utilities have contributed about the same; coal interests have contributed more than $850,000.  It’s safe to assume, I think, that the fossil energy sector is not hoping to elect a Congress that will favor a rapid transition away from the fossil-energy era.

Secular law makes this legal. In my opinion, moral law does not.

The climate debate in Congress is testing our morality as a nation, as well as the faith so many other people in the world have in the integrity of American leadership.  It’s a test we should not fail.  The members of Congress who don’t get this, don’t deserve to be there.

– Bill Becker

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5 Responses to Road to Copenhagen, Part 6: Tragedy of the commons vs. action by the uncommon

  1. ken levenson says:

    great post.

    it leads me to think that this test of “American Democracy” right now, may go down as one of the great debates and defining moments in human history – with very powerful unintended consequences….because as we see the totalitarian state in China doing a complete 180 degree turn in an historic blink of an eye with regards to saving our common climate – it is beyond frustrating to see our “enlightened democracy” flail miserably about.

    While I have profound respect for our founding fathers and documents and the “American Experiment” – is this not a time of existential crisis akin to our civil war? and it makes me tremble to question our capacity to deal with such crisis.

    As important as public health and health care is, or employment, or bank regulation…the climate crisis is an existential crisis that demands nothing less than Lincoln and Churchill rolled into one. If not, along with losing our common climate – we may lose our current age of modern enlightenment and descend into a new era of dark ages…

    …waiting for Lincoln/Churchill…. (doesn’t have the best ring admittedly…)

  2. Leif says:

    Dear, Hornorable, Exhaulted, etc., President Obama. You have been awarded the Nobel Peace Prize not only for your past accomplishments but also, I believe, for anticipitated future efforts. Time to step up to the plate big guy… Like it or not, you are the HOPE in Hopenhagen.

  3. SecularAnimist says:

    Bill Becker wrote: “… although the Constitution dictates that we keep government and religion separate, there are places in public policy where secular values and moral values overlap.”

    This comment appears to equate “moral values” with “religion”. Religion is absolutely NOT the only source, or even a privileged source, of moral values. There are entire systems of moral values that are based on a secular worldview. And the most fundamental source of moral values is the natural, biologically-based empathy for the well-being and suffering of other sentient beings, which is found in varying degrees throughout the animal kingdom.

  4. Inspiring!
    Dr. Romm, thanks for including this.
    Our leaders desire for power is so strong, it distorts their ability to understand the gravity of global warming.

  5. Dan B says:

    Rewrite:

    “(T)he debate about climate change is… about whether a free people will be a responsible people, a capitalist economy will be a caring economy and a democracy will protect the rights to life, liberty and the pursuit of happiness for everyone, even those not yet born.

    Beautiful, even paraphrased by me.

    It’s also about the spirit of our country when faced with big challenges, we rise to them and they raise us up. “We do things not because they are easy but because they are hard.” John F. Kennedy set the course to the moon and for a commanding lead in technology for the next 30 years.