The secret war on natural rights—and children | opinion

This opinion piece by legal and ethics scholar Carter Dillard was published in Newsweek on 6 January, 2023 at https://www.newsweek.com/secret-war-natural-rights-children-opinion-1771365.

Climate activists around the world have spent years urging the courts to force governments and companies to do more to mitigate the climate crisis, often invoking fundamental human rights as a way to override the political processes that are failing to act. Many of those cases center on the idea that there is a constitutional right to a healthy environment, which courts should be protecting. Often the heart of this approach – embodied in litigation brought by groups like Our Children's Trust (OCT) - is defined by what would be good for humans, an anthropocentric approach, rather than what would be good for the vast and disparate number of more fragile nonhuman species with whom we share the world.

The former approach is generally understood to center around the acceptable emissions standards more or less outlined by the Paris Agreement, which allowed a significant temperature rise worldwide. The anthropocentric approach and its rejection of the need to preserve a contiguous nonhuman world has proven disastrous, as scientists confirm we will be unable to limit temperature rises to what we had hoped, we begin to see feedback loops that could create unstoppable levels of new emissions. Even the temperature rises permitted by the Paris Agreement cause horrific impacts on children, and disproportionately so based on their level of income. The recent failure of the global climate conference, COP27, highlights just how little our political systems are doing.

One recent court case in which I was lead counsel went further and non-anthropocentric approach. Animal Legal Defense Fund (ALDF) v. United States, argued that the United States Constitution ensured an eco-centric, rather than an anthropocentric, right. And that such a right required climate restoration, not just mitigation. The case - based on research originally published by Yale Law School in 2008 - went even further, arguing that such a right was part of the concept of relative self-determination itself that preceded and justified systems of governance, and thus a right that could override competing interests, like the property rights of fossil fuel conglomerates. It sought to make the legitimacy of systems of governance contingent on substantive outcomes, not mere process.

Nature or the nonhuman world is the buffer that makes self-determination, versus being determined by others, physically possible. The rewilding case heralded the end of a long process of trading that freedom for growth and gross domestic product—of unsustainable growth policies that created people for shopping malls rather than town halls in nature that is the explicit vision that begins the Declaration of Independence. The case drew a line to allow us to know what it means to be empowered—the buffer—without disempowering others.

Dozens of amici organizations, including indigenous tribes and prominent celebrities like Mark Ruffalo, supported the case. By taking the unprecedented step of calling for redistribution of wealth through Fair Start family reforms, the case also tried to resolve the brutal inequity, blatant racism and neo-colonization at the heart of anthropocentric climate policy, where the most vulnerable—and those least responsible for the crisis—suffer the worst of its impacts. The case, which was highlighted in Congress by the House Natural Resources Committee chair and others, was scheduled to go to argument before the Ninth Circuit Court of Appeals earlier this year, and the court had extended the time for oral argument, a sign that the court was particularly interested in the case.

Just before argument, the case was quietly withdrawn from court by ALDF, and I resigned shortly thereafter. The information publicly given for the withdrawal was inaccurate and I was urged not to disclose the truth.

Well, I am now coming forward to explain the truth and to try to prevent this misconduct from recurring as new eco-centric cases are filed, and nature-restorative legislation and other measures are introduced.

The case, which was often referred to as the "Rewilding" case, argued for a right to live with the capacity to experience wilderness and nature, as a form of human freedom. The United States Constitution in unique in part because it derives from social contract theory, in which liberty—or being let alone by others—is anchored to nature or the nonhuman world—the very concept that makes consent to the power of others possible, and that's a political structure that is most consistent with ecocentrism.

The difference between the Our Children's Trust human welfare-oriented approach and the Rewilding freedom-oriented approach is stark, with the latter calling for climate mitigation that would reduce carbon dioxide levels by more than a hundred parts per million more than the anthropocentric standard, and the restoration of conditions specifically geared to support nonhuman autonomy and the biodiversity they represent.

The case, crucially, relied on a long line of Supreme Court precedent that guaranteed a right to be let alone by others. These cases, which sought to unpack the concept of liberty, required treating the spectrum of human freedom to which they referred as anchored to a state of nature—an eco-centric standard—in which the idea of humans' autonomy from the climate-degrading influence of others made sense. What good is a right to privacy, to be free from surveillance, but not the harmful impacts of others' emissions? Isn't the freedom to be secure in one's home meaningless if others can exacerbate wildfires that burn our homes down? If we believe in the right to terminate a pregnancy, what good is it if the person later dies from heat stroke, or a climate-exacerbated pandemic?

The arguments in the case—which promote physical constitutionalism as an alternative framework to things like effective altruism—has now been supported by half-a-dozen positive peer-reviews. The "rewilding" challenge to anthropocentric standards had serious financial implications, setting the highest baseline for measuring "loss and damage" climate reparations, a baseline that would entail much greater costs for governments and industry than if a lesser anthropocentric standard were applied.

The case was meant to solve other problems. Animal protection, children's rights, environmental organizations had been undoing the progress they claimed publicly to be making for animals and nature, by—like OCT—opting for family, climate, and other policies that treated the environment as a human resource rather than as nonhuman habitat that liberated them. In this secret war we were knowingly undoing with one hand what we claimed to do with the other, largely through growth-based family policies that never gave children things that the Children's Rights Convention requires, policies that many are trying to now reverse. These policies—which included measures meant to reverse falling fertility rates and ban abortions—favored ecocidal population growth in a system harshly criticized as a Ponzi scheme by Nobel laureate Steven Chu over investing more in each child's wellbeing, and the development of their empathy and love for animals. The Rewild litigation was meant to reverse these mistakes (despite some funders' objections), the misdirection of anthropocentrism, and the white supremacy of intergenerational birth inequity.

So, what actually happened to the case? The Animal Legal Defense Fund was pressured into dismissing the case by Our Children's Trust—which was not a party to it. On several occasions counsel for OCT contacted the attorneys litigating ALDF v. US and urged them to withdraw the case and threatened a variety of things if they did not.

OCT had succeeded doing this in other climate cases it opposed, using a variety of questionable legal tactics.

In short, the "rewilding" case was dismissed because it promoted the more demanding forms of environmentalism—ecocentrism, biodiversity, and climate restoration—as part of an overriding human right, a more holistic approach to climate protection, instead of anthropocentrism, a more limited and narrow approach to climate protection that is hurting the most vulnerable.

The loss of the case meant years of lost work, space for the companies creating the climate crisis to do more harm, and a missed opportunity to change the course of how we respond to the climate crisis during a critical phase in the fight, as tipping points approach. Not dropping to restorative 280 parts-per-million climate emissions, and adopting family, migration, and other protective policies, will kill countless people—full stop.

Nothing justifies that—and the right to be let alone demands that we change course. This case and others like it will soon be refiled, and hopefully it's not too late to bend the arc of our and other species towards freedom.

Carter Dillard, author of Justice as a Fair Start in Life, began his career as an Honors Program appointee to the U.S. Department of Justice. He later served as a legal adviser to the U.S. Department of Homeland Security, in the national security law division.

The views expressed in this article are the writer's own.