A Sustainable Climate is a Basic Human Right

By Tom Coffin

[This essay was originally published November 22, 2021 on climate policy expert William Becker's blog on Climate Change.]

One of the first statements in the 97-paragraph agreement at the end of the United Nations' Climate Change Conference (COP 26) acknowledges that nations have an obligation to respect human rights as they address global warming. Along with more than 190 other countries, the United States endorsed the agreement with Climate Envoy John Kerry declaring, "No one is exaggerating when they call this an existential threat."

Yet only two weeks earlier, the United States withheld its support of an important resolution approved by the UN Human Rights Council. It stated, "environmental degradation, climate change, and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy human rights, including the right to life,'

The United States is not a voting member of the Council, but its representatives dismissed the resolution with this statement of Biden administration policy: "The United States has consistently reiterated that there are no universally recognized human rights specifically related to the environment, and we do not believe there is a basis in international law to recognize a 'right to a clean, healthy, and sustainable environment,' either as an independent right or a right derived from existing rights."

Yet if it is true there is no legal right to a clean, healthy and sustainable environment, our job should be to create one. That is at the heart of ongoing climate change litigation in the United States.

Passing Down a Debt

This existential threat to life itself is a debt passed down to young people by their predecessor generations. It is a debt that cannot possibly be paid or even deferred unless those living in the present respond with utmost urgency and science-based measures to reverse the causes before the climate system reaches the point at which the escalating deterioration becomes irreversible.

What is the purpose of government if not to protect and defend the People it was formed to serve? What is its most important mission, if not promoting their very lives and the means to sustain life, such as the air they breathe, the water they drink, the land and seas on which they toil and gather their food?

Yet our Government, which has been described as a model of modern Democracy, officially denies to its own people, and the world at large, that there is any recognizable human right to an environment capable of sustaining their lives. Translated, that means past and present generations can indeed indulge in actions that will cause the extinction of those who come after them, and such actions do not violate any rights of those who suffer the consequences.

This position is nothing less than a monumental repudiation and betrayal of our common law, heritage, and our own Constitution, and it is opposition to the understanding of the international community's declaration as iterated by the United Nations.

The Preamble to the Constitution would itself seem to contradict the denial of such a human right:

We the People of the United States, in Order to form a more perfect

Union, establish Justice, insure domestic tranquility, provide for the

common defense, promote the general Welfare, and secure the Blessing

of Liberty to ourselves and our Posterity, do ordain and establish this

Constitution for the United States of America.

To put the Preamble in context, the Declaration of Independence recognizes this basic human right by boldly proclaiming:

We hold these truths to be self-evident, that all men are created equal,

that they are endowed by their Creator with certain unalienable rights, that

among these are Life, Liberty, and the pursuit of Happiness.

President Abraham Lincoln considered this passage to be the foundation of his political philosophy and a statement of principles through which the Constitution should be interpreted. He was joined in this sentiment some 50 years later by President Teddy Roosevelt, who stated:

The 'greatest good for the greatest number' applies to the number within

the womb of time, compared to which those now alive form but an

insignificant fraction. Our duty to the whole, including the unborn

generations, bids us to restrain an unprincipled present-day minority

from wasting the heritage of these unborn generations.

Roots in Roman Law

Adding to these historical recognitions of a basic human right to life and the means necessary to sustain it, we find the same principles in our common law with ancient roots as deep as the Roman Emperor Justinian, circa 600 AD. He decreed that government held in trust certain resources that are necessary for the common good and ensuring the lives of the people. Justinian legal texts at the time proclaimed:

By the law of nature these things are common to all mankind: the air,

running water, the sea, and consequently the shores of the sea.

Common property could be owned by no one, affording all citizens access to it. This principle was reaffirmed by the English Magna Carta in 1215 AD, and again by English common law in 1641.

In the United States, English common law applied to the 13 colonies and eventually to the states formed following America's independence—a heritage recognized by our courts, both state and federal.

Thus we have a fertile and long-standing heritage to draw upon not just in recognizing, but also in affirming and increasing our commitment as government to the basic right of the people to access the air, water, shores, and other resources necessary for life itself. Without an environment that sustains these resources, there is simply no purpose or point for government.

Not For Sale

During a hearing in an early stage of litigation in Juliana v. U.S. Government(the lawsuit filed by 21 youth who argue government support for fossil fuels violates their constitutional rights), the Court presented a hypothetical question to attorneys for a group of intervenors representing fossil fuel corporations and related entities dependent on carbon-emitting energy supplies. The question was whether the Constitution or the common law Public Trust doctrine would present any obstacle if the government proposed to sell its territorial seas to energy developers such as oil corporations. The response was delivered without hesitation—such alienation of the Nation's resources was indeed permissible.

That view reflects a fundamental disconnect with the principles of government as defined by our Constitution and common-law heritage. The people have formed a Social Compact wherein they consent to being governed by a chosen representative body whose members are charged with promoting the general welfare of the people, not the opposite arrangement. The notion that resources necessary for life itself could have a "for sale" price tag is diametrically contrary to these core principles of government.

Climate change is the real price for promoting and continuing fossil fuel energy even after science has disclosed its threatening toll on humanity and all inhabitants of the only planetary home we have. We must not bargain away the atmosphere and other life-giving resources. They are indeed basic "unalienable rights," and the government should not hesitate to officially acknowledge that truism.

One of the most significant precedents in our nation's history is found in Brown v Board of Education, wherein the Supreme Court decided that segregated facilities such as schools violated the constitutional rights of African-Americans. That declaration was pivotal in starting the ongoing journey towards the goal of ending discrimination. The significance of this landmark case in our jurisprudence cannot be overstated. As long as the United States remains bound by the Rule of Law, political partisanship must be set aside to implement the law of the land.

A declaration that the people have a right to an environment sustainable of life would start us on a similar journey in regard to the existential threat of climate change. Political partisanship would give way to that right with the urgency that is required. Already, too much time has been lost, as successive administrations catered to economic interests and traded posterity's future for the short-term profiting of those whom President Roosevelt described as "an unprincipled present-day minority…wasting the heritage of …unborn generations ."

We waste a dwindling opportunity by refusing to acknowledge the right our ancestors understood and protected for centuries. The peril is exponentially greater today with legalistic arguments to absolve the government from its obligation to enforce a basic right of its people.

Humanity is running out of options.

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Thomas Coffin was the keynote speaker at the Blackberry Pie Society’s Political Party in February, 2020. He is a retired federal magistrate judge for the U.S. District Court for the District of Oregon and a former professor at the UO Law School. Thomas retired in 2016 after 24 years on the bench, prior to which he had a career as a federal prosecutor spanning 21 years. He is married with 7 children. The Blackberry Pie Society is pleased to include a collection of his essays on our website. We will post them as they become available.

posted 12.13.2021