Is Global Constitutional Insurgency the Key to Transforming the World Order and Saving the Climate?
NEW SOLUTIONS: A Journal of Environmental and Occupational Health Policy
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Jeremy Brecher. (2015). Climate insurgency: A strategy for survival. Cornwall, CT: Stone Soup Books. 170 pp. FREE (electronic). ISBN: 978-1-61205-821-4.
Reviewed by: Thomas Estabrook, University of Massachusetts Lowell, MA, USA
Like a fast car headed for a cliff, humanity’s eﬀorts to avert catastrophic climate change have thus far failed. As we attempt to apply the brakes, we ﬁnd that some force, some obstacle, is preventing us from braking. This is the situation in which we ﬁnd ourselves, as we struggle to avoid careening oﬀ the cliﬀ. We are fumbling for a strategy that will save us from this existential threat. And despite the signiﬁcant breakthrough of the Paris climate agreement, the temporary halt- ing of the Keystone XL pipeline, and the Obama administration’s executive action halting future oil exploration in the Arctic, climate protection eﬀorts have failed to restrain the continuing rise in greenhouse gas emissions and global temperatures. We need a strategy for ‘‘common preservation,’’ and we need it now.
Climate Insurgency: A Strategy for Survival, by Jeremy Brecher, provides us with an important, perhaps humanity-saving, strategy. In a nutshell, Brecher’s strategy is to create a global, non-violent constitutional insurgency that employs the ‘‘public trust doctrine’’ and related measures to build a massive, global climate protection movement to confront formidable obstacles and build a climate-safe global economy. In Climate Insurgency, Brecher explores the problem of failed climate protection efforts—even in the face of an expanding climate movement—and proposes a constitutional climate insurgency for building a climate-safe economy and preserving life and livelihoods around the globe. At a short and dense 129 pages of narrative, Climate Insurgency explains the multiple barriers to eﬀective climate protection and proposes in very clear terms a comprehensive strategy that other climate-action thinkers have not done. Brecher is a veteran labor and environmental activist and historian of social movements for more than 40 years. He is cofounder of the Labor Network
for Sustainability and has written extensively about climate-action strategy and engaged in numerous climate actions, including civil disobedience against the Keystone XL pipeline. Brecher states that any earlier notions that an environ- mental movement could impose its agenda on government and business are wrong, and that climate change demands new forms of collective action for ‘‘common preservation.’’
Adding to the important climate action scholarship of others, Brecher offers an incisive analysis of the problem of climate change and an elegant yet pragmatic strategy for climate protection. Brecher’s contribution is in keeping with the work of climate scholars that identiﬁes the fossil fuel industrial complex (Bill McKibben and Naomi Klein) and neoliberalism (Klein and George Monbiot) as major obstacles to climate protection. Brecher also aligns with McKibben, David Roberts, and others in his call for a World War II level mobilization of resources as a model for achieving climate protection and build- ing the political will to make it happen. While the Paris climate agreement was reached and ratiﬁed shortly after this book was published, Brecher’s analysis captures the dynamics at play in the limitations of international agreements and the ways the climate protection movement could transcend those limits. The book also preﬁgures the spirited and courageous resistance by the Standing Rock Sioux to the Dakota Access Pipeline. Brecher begins Climate Insurgency with the observation about the lack of binding agreements to limit greenhouse gas emissions 25 years after scientiﬁc evidence demonstrated already, by 1990, that global warming was obvious: ‘‘There is no signiﬁcant limitation on further emissions, inadequate analysis for the reason for this failure, and little plausible strategy to overcome it.’’ This becomes Brecher’s mission in Climate Insurgency, to provide a sound analysis for the failure of climate protection and to provide a plausible strategy to overcome that failure to protect the climate. Climate Insurgency poses three questions to be explored: How could straightforward climate protection measures be blocked by a narrow set of forces? Are there deeper structural factors that make climate protection so diﬃcult? And if so, how can these factors be overcome? Brecher ends his introduction with a plea to readers to consider his strategy critically and to oﬀer corrections or a better alternative strategy. He states, ‘‘Climate protection can’t wait for a perfect strategy; all of us have a duty to ﬁnd the best strategy we can and then act on it.’’ This is an invitation to join in the collaboration of the climate protection movement. The failure of climate protection gave rise to a diﬀerent kind of climate protection movement that sought to move beyond scientists and political oﬃcials. In its early stages, this new movement was an assemblage of diverse ideologies, from Big Green to youth, religious, and social justice organizations. By the early 2000s, the climate justice movement had emerged as ‘‘a global rallying cry, shifting from technocratic policies and negotiation toward a more anti-systemic approach, critical of developed countries, the UNFCCC, global governance and neoliberal capitalism.’’ Rooted in deep ecology, ecofeminism, and ecosocialism, the climate justice frame guided the movement to direct action and civil disobedience, with particular attention to vulnerable countries and populations.
Brecher explains that despite the climate justice movement’s strong criticism of mainstream proposals for climate protection, it has fallen short of creating climate protection programs, due to steadfast resistance by major governments to climate protection measures. Government intransigence fueled an even greater commitment by climate justice organizations to direct action and civil disobedience, as they adopted climatologist James Hansen’s 350 ppm safe threshold as a common frame for action, that is, to reduce carbon emissions immediately, aiming to drop CO2 levels to 350 ppm by 2100. A new movement developed—global, decentralized, with highly ﬂuid organization. Brecher notes, ‘‘Climate protection from below has emerged from the failure of climate pro- tection from above.’’ While the rapidly growing movement challenged corpor- ations and governments, applying its frame of climate protection and social justice, it could not halt the momentum of climate destruction. Brecher argues that the movement must become much bigger and more powerful, becoming a global non-violent insurgency involving hundreds of millions of people if it is to eﬀectively challenge the fossil fuel industrial complex.
Why has climate protection failed? The answer, Brecher states, is that measures we need to take to protect the earth’s climate threaten the power of the most powerful institutions: national governments, corporations, militaries, and every- day people resistant to changing their lifestyle. Government, corporations, and dominant institutions are incapable of providing for ‘‘either the long-term inter- ests or common interests of the world’s people,’’ but instead are focused on fol- lowing the short-term interests of citizens, shareholders, and the elite. Brecher identiﬁes ‘‘world order obstacles’’ and ‘‘obstacles in human hearts and minds.’’ I would argue that understanding these sets of obstacles is vital to building a more eﬀective climate protection movement. World order obstacles to climate protec- tion include the fossil fuel-producing industry and its network of support for fossil fuel corporations, neoliberalism, and the nation-state system. The nation-state system, which inhibits larger and longer term interests being imposed on any nation-state, ‘‘allows corporations to destroy the atmosphere behind a wall of national sovereignty.’’ Brecher distinguishes himself from other climate action scholars by underscoring the importance of nation-state sovereignty in undermin- ing climate protection. He recognizes obstacles in human hearts and minds, including: denialism of climate science; incrementalism, with many people advo- cating a go-slow approach; economic consequences of climate protection, such as believing that it will kill jobs; the belief that other countries should pay ﬁrst; the belief that the status quo is legitimate; the fear of social movements; and hope- lessness about being able to do anything about climate change.
Perhaps the most important contribution of Climate Insurgency is Brecher’s proposal for a global non-violent constitutional insurgency as a plausible strategy for climate protection. Brecher takes the term ‘‘constitutional insur- gency’’ from law professor and historian James Gray Pope. A constitutional insurgency is a ‘‘social movement that rejects current constitutional doctrine, but that rather than repudiating the Constitution altogether, draws on it for inspiration and justiﬁcation.’’ Brecher states that the goal of a constitutional insurgency is to transform the world order, which is chaotic and ﬂuid, yet in many ways easier to transform than the political-social order of individual nations. In other words, a global insurgent movement is needed to transform the world order.
Brecher asserts that the climate movement has three challenging tasks: limiting the self-interest and greed of corporations and governments, overcoming the greenhouse gas hegemony imposed by powerful nations, and developing a strategy for political-economic-social transformation to protect climate and well-being. He says that the climate protection movement might have to become a non-violent insurgency, and does so by refusing to accept eﬀorts by authorities to place limits on its action and by refusing to cooperate, which can motivate
powerful institutions to change. Brecher contends that this is where constitutional insurgency comes in. Although engaging in civil disobedience is a moral protest, it does not challenge the legal validity of government and institutions. A constitutional insurgency goes another step by declaring laws and policies illegal and seeks to ‘‘establish law through non-violent self-help.’’ Brecher notes that while such an insurgency declares some laws and policies illegal, it upholds the legitimacy of fundamental law, and seeks to enforce legal and constitutional principles that state authorities are violating. In the case of the destruction of the atmosphere, a powerful legal argument can be made that
governments are violating their most fundamental duty to protect the atmosphere. Brecher notes that constitutional insurgency rests on a legal argument called the public trust doctrine, an ancient legal principle, which states that destruction of the earth’s atmosphere, and government’s complicity in it, is illegal and unconstitutional. Constitutional insurgency has roots in the civil rights movement and anti-Vietnam War movement, where freedom riders and war resisters were not breaking the law, but rather upholding constitutional law (a guarantee of equal rights) or opposing laws that forbid war crimes. Again, constitutional insurgency draws inspiration from the constitution while challenging legal institutions as unconstitutional through the use of extra-legal assemblies, tribunals, and mass protests. Such a climate insurgency must be global in scale to be eﬀective because climate destruction requires ‘‘global solutions implemented in speciﬁc locations.’’ Under the public trust doctrine, the state has the ﬁduciary right to protect the commons (air, water, etc.) for the people and serves as trustee for rights held in common by the people. While the public trust doctrine is a principle of U.S. law and legal doctrine elsewhere, there has been no eﬀective way so far to assert the right of the people to protect the commons. Brecher notes that currently there is an eﬀort in the United States, beginning in 2011, by the Atmospheric Public Trust Litigation project to bring suits by young people in 50 states and against the federal government. A current case is going forward in federal court. The public trust doctrine is a social contract, in which the government protects the common interest, and has a duty to prevent waste to the asset, seen as generational theft. The doctrine entails two legal duties: the sovereign duty that each government has to its citizens and the duty each national government has toward other sovereign nations. If duties are violated, citizens can bring action against their own government, and their government can bring action against other govern- ments. The courts then help to apply fair remedies to carbon pollution, and can use a model called the Greenhouse Development Rights Framework, which seeks to quantify the fair-share factors and evaluate the fair share for each country. Brecher notes that U.S. courts will probably refuse to force govern- ments to fulﬁll these duties, underscoring the importance of the climate protec- tion movement in carrying out mass civil disobedience to force governments to protect the global commons.
Climate Insurgency makes the important point that the climate protection movement, in eﬀect, can act as a global enforcer of governments’ duty to protect the public trust. Brecher considers how the climate protection movement should enforce the public trust duties. He looks at a global non-violent insurgency as a plausible way to transform the world order in order to protect the climate by enforcing ‘‘the duty of governments to protect the public trust.’’ Brecher sees the current climate protection movement as the starting point, with its global organization and use of civil disobedience against established authorities. As such, the movement is already acting to enforce the law to protect the public trust. He argues that the movement must make a central part of climate campaigns a redeﬁnition of climate action to be defense of the public trust. Climate justice tribunals are one such way of enforcing public trust duties. Current citizen tribunals draw inspiration from the citizen tribunals against the Vietnam War, which encouraged tens of thousands of people to resist it. While citizen tribunals can’t force governments to comply with orders, they might possess law-making authority. A climate justice tribunal of September 23, 2014 concluded that governments and corporations are violating human rights. Future tribunals could look at evidence in more detail and issue judgments and injunctions, thereby pressuring courts to force governments and corporations to comply with the law. Citizen tribunals can build legitimacy in order to attract people to join in constitutional insurgency. Brecher explores how to build power to protect the public trust, such as involving citizens in monitoring violations of public trust rights, for instance, monitoring carbon pollution, which might involve trespassing as an act of civil disobedience. Brecher’s point is that an eﬀective climate insurgency, which would force governments and others to do the right thing, will require the commitment of 150 million to 300 million people globally. He states, ‘‘The climate insurgency may need to ﬁll the jails, making societies ungovernable through sustained disruption.’’ The insurgency must try to isolate corporations, banks and governments, in part by challenging their pillars of support. The movement must ﬁrst force incremental change, then build outward.
Climate Insurgency explicitly calls for a transformation of the world order to enable the building of a climate-safe global economy. Brecher begins by acknowledging the existential threat climate change poses, a threat which demands climate protection of the highest order, yet which is blocked by an entrenched world order. Understanding and communicating this existential threat is essential for the climate protection movement to win new supporters and participants. Brecher stresses the importance of building an independent global movement, not beholden to any one nation or coalition of nations, and that pushes human survival against the existential threat of climate change and drives the transformation to a climate-safe economy. Such a movement can only succeed through mass organization and mass civil disobedience. The public trust doctrine, in concert with the Greenhouse Development Rights Framework, could well become the legal underpinning to drive the transformation. These principles clearly deﬁne the just duties of each country to protect the climate. The climate protection movement must hold governments in violation of the duty to protect, and should do so by exercising civil disobedience as an act of law enforcement against governments that are destroying the atmosphere. This is the global constitutional insurgency, which challenges governments to fulﬁll their duty and protect the public trust. This is a major contribution that Climate Insurgency brings to the discussion about climate action strategy.
It is also important to recognize Brecher’s argument that a non-violent con- stitutional insurgency can help drive more conventional actions such as lobbying and a variety of civil society actions in communities to make communities and people climate-safe. This relationship of inside and outside forces is enabled by coordinating networks that provide a synergy and focus on transforming insti- tutions to become more democratic and oriented to the broad needs of the public. As countries become aware of fulﬁlling their public trust duties, they will need to develop national climate action plans, and will need to use a com- bination of methods, including government planning and investment, local and regional civil society initiatives, and market-led incentives. Powerful government agencies will be needed to implement and manage the transformations. Legal, institutional, and popular power will be required to keep the government agen- cies on track and accountable to democratic institutions and the people. Thus, a large scale climate Keynesian intervention in the economy is required, but unlike the military Keynesianism of the World War II mobilization, this time it must be overseen by democratic institutions and the public to ensure accountability on the path to climate safety.
The global climate protection movement is a way for people of each nation to demand that their government protect the public trust and to demand that all nations meet their public trust duties. In his conclusion, Brecher asserts that the changes brought about by fulﬁlling the duty of the public trust will not require the nation-state or capitalism to be abolished, but that their current form will need to be signiﬁcantly changed. I would argue that we simply don’t know this. It remains to be seen what the new economic system will look like and how radical the transformation will be. At a minimum, nation-states will no longer have absolute freedom, and the property rights of companies and other eco- nomic actors will be signiﬁcantly restricted. This poses a real challenge to the capitalist system, but previous periods such as the New Deal saw the business community agree to new regulations and concessions. Yet, history tells us to expect signiﬁcant pushback from corporations and governments to restrictions on their freedoms and property rights.
Brecher brings a pragmatic and thoughtful proposal to addressing the climate crisis. Others scholars have addressed the multiple actions from the local to the international levels to strengthen the struggle for climate protection and to mobilize the resources needed to reduce greenhouse gas emissions dramatically. Brecher goes further by comprehensively assessing the obstacles and oﬀering up a promising strategy for pulling together the various climate campaigns, initia- tives, and policies. This book should be required reading for all climate protec- tion activists and should be used for discussing and planning further actions for climate protection.