You're listening to Unite and Heal America and KABC 790. This is your host, Matt Matern. My guest today is Thomas Linzey, Senior Legal Counsel for the Center for democratic and environmental rights. Welcome to the program, Thomas.

Thanks for having us, Matt.

Well, just, you've got a fascinating bio. And I wanted to kind of kind of step a few steps back and tell us a little bit about how you became the senior legal counsel and kind of your journey in the environmental movement to get to where you are now.

Sure. So take us back to the early 1990s When I was in law school, but we had a bunch of and I went to law school in rural south central Pennsylvania, we had a bunch of groups coming to us folks that were targeted with toxic waste incinerators and factory hog farms and fracking for natural gas, basically, all the kinds of environmental projects that communities don't necessarily want in their communities.

And they were coming to us because today, there are fewer than 200 full time environmental attorneys in the United States that do this kind of work, you know, nonprofit environmental attorneys representing communities. And back then the numbers are pretty much the same. And so during law school, we tried to assist those communities that were coming to us as much as possible. And then after graduation, we created a nonprofit law firm to provide free legal services to community, community organizations that were focused on conservation issues.

And for about 10 years, I did what I refer to as conventional or traditional environmental law work. So we work to enforce the Clean Air Act and the Clean Water Act. And we did permit appeals and appeals zoning decisions and all the kind of stuff that conventional environmental lawyers do today. And at the end of those 10 years, we've kind of came to the conclusion that the environmental laws in the United States weren't actually protecting the environment.

No, we sound strange to say, because people think about these federal environmental laws is protecting the environment. But when you try to enforce them, you find out that not like they have flaws, but that the folks writing the regulations that essentially implement those environmental laws, the United States are generally the regulated industry themselves, or the largest corporations in individual industries that are writing those regulations, and are people on the ground.

So when we try to stop projects, using those kinds of conventional traditional legal frameworks, we end up often than not exhausting the organization, the community organization itself and expending monies on lawyers to come in and try to use those environmental laws, but generally not to any avail. And so we got to switch gears at that point. It's something different, which is working with communities to recognize local environmental laws and legal frameworks.

And how have you done that in terms of what about preemption doctrines were? Certainly defendants and large corporations would argue, well, the federal laws apply here. And we don't want to have to deal with these little local laws here.

Yeah, so in the beginning, we assisted groups to draft local ordinances that ban certain activities like factory hog farms, or corporate farming, you know, fracking within the community, or other unwanted projects and activities that were coming into that particular community. And the way that conventional US law functions is really that if the federal government has issued a permit to a particular project, or the state government has issued a permit to a particular project, that generally prohibits the municipality, or the community that you're in the city, town, village or county from saying no to that project coming in, because after the federal and state government have issued a permit basically becomes a legal use le JAL, and that legal use, then Trump's the ability or authority of the community to say no to that project.

So that's kind of how conventional law functions in the United States today. And we basically hotwired the local system of governance to begin adopting rights based laws, right to clean water right to clean air, basically flipping the nickel from just being bans on specific activities or projects coming in actually being rights bearing laws, which we're not just about banning a project, but we're recognizing this wider right, environmental rights and democratic rights of the community to actually adopt a right to clean water right to clean air those types of laws, which automatically meant banning those activities, if you could prove that they violated that right to clean air, clean water.

So that work kind of took off in the mid 2000s and also morphed into Something called rights of nature, which is a growing movement across the United States and internationally to recognize ecosystems as having certain rights as well. But the general idea is a rights based system of organizing, that would attempt to move beyond these traditional environmental and governmental rules, and in fact, recognized sovereignty of a type at the local level for local democracy to be enacted and practiced in this way.

So what is the your experience been at the local level, and maybe even at the state level, in terms of actually stopping projects or helping improve the environmental quality of the communities that you're enacting these laws?

And, yeah, so in a lot of communities, when the community stands up and makes laws through a municipal government, or through a citizens initiative, where people can make law directly, a lot of times the corporation or the industry that was planning a particular project, would simply go away, because they don't want the added costs they wanted to, they could always cite in the community next door, and so there were other places to be.

But before we leave the topic for a moment, I think it surprises folks to understand that they don't really have any control. Right now, under the traditional system of law for these kinds of projects coming in for the reasons I just mentioned, that the state and federal permitting process actually operates to Trump, their ability to pass anything at the local level. So in some ways, it made us begin to question the very concept that we had a democracy in the United States.

Because if you can't stop that, which is coming in to harm you, and it has a proven track record of harming you, then it's tough to make the argument that we have a democratic system operating here, because in essence, harm can be thrust or forced into the community involuntarily by the community who lacks the lawmaking authority to actually pass something to stop that harm, which is about ready to happen to them.

And so in many ways, the work that we've been doing work that I've been doing best 25 years is really about getting people to come to grips with the fact that democracy in this country is a myth, at least at the local level, as we understand Democratic majority control. majority control as a democratic function should be that communities are left at the mercy of these of these corporations, industry and government coming in to do the to step on them when some project gets forced into their community.

So the work as important as it is to put words on a page and pass a law. That's all good. But in addition to that there's a really kind of decolonization effort that's happened in people's brains about do we live in a democracy or not? Shouldn't we have a say, as to whether this particular project comes into this into our community or not harms our families and our community?

Well, I guess, just to push back a bit on that, because otherwise, we wouldn't have much of a conversation. Whether or not that, I mean, we've had a federal system from the inception of the country. And, and there, there's always been attention as to whether or not state power or local power should trump federal power, and in some circumstances it does as to like local police power.

The police in general are our local officials and things like that, and, and there's certain amount of autonomy that that local communities have and and still have, I guess, I see your point that certainly there are a lot of federal and state laws that Trump the local, there's question is how do you balance that? What's the appropriate balance between federal and state and local?

Yeah, it hasn't really been balanced at all over the past 200 years. In other words, in the US today, as you know, that we have something called Dillon's rule, which, in effect says that our municipalities, the communities where we live that cities, towns, villages, or counties are basically serfs of the state government, state government can abolish them can merge them can take power away can give them power, they have no independent existence. So when we talk about federalism, we use that term.

Basically, we're basically referencing the federal government, the state government, our localities don't even exist on the screen. They're not even at the table when these conversations are taking place, because the state government unilaterally decides what a locality what power locality is going to have, and whether they can pass a specific law or not.

So this, this isn't really about rebalancing. It's about appearing for the first time that our communities are invisible to this system of federalism that we have. What's fascinating to me, you know, going back to the to the federal state relationship is that the Supreme Court has recognized for 40 years now that a state governments have the ability to adopt to expand right rights for people out beyond the federal government floor.

So federal government bill of rights establishes a floor of constitutional rights. State governments have been recognized for over 40 years now as having the power to elevate themselves above that floor of rights and actually create new rights, expand federal rights, but that same relationship has not existed between the state and the local. So federal and state been recognized for a long time, federal or local and state or local, not recognized at all been fairly invisible in the system?

Well, I would say an example where that may not be true is the cities have have given rights to employees beyond what the state government has allowed in the state of California, like certain communities to give more sick days, certain communities have minimum wages that are higher than the state government minimum wage.

So I think there is some of that out there when you agree, no, because they'll reason those local laws exist because the state of California allows them to. So tomorrow, the California State Legislature could pass a pre emptive law that wipes those local laws from the chart. So it's completely up to state control as to what what power localities can exercise.

So California has chosen to be more progressive, in that they've chosen to allow localities to actually pass laws more stringent in particular areas, other states have allowed localities to pass minimum wage laws to establishment and wage higher than what the state has adopted. But that's only by choice of the state legislature, if the Republicans took over the California State Legislature tomorrow, which granted is probably not going to happen.

But if they did, they could wipe out those local laws with a stroke of a pen. And there's nothing constitutionally to stop them from doing so. There's no constitutional right to local government. In other words, that would stop them from taking those actions.

I guess I would just push back on that a little bit and say, Well, in reality, how often has has that occurred? Where state government has really wiped out a municipal, right? particularly related to environmental laws, because that's what your focus is on?

Why you should ask the people of Michigan that when they have the state, appoint financial managers to come in and take over municipalities, because there's nothing in the law that actually requires municipalities to have elected officials to elect their own officials.

In other words, and so, you know, we're in a position where, again, the state determines the entirety of what occurs at the local level, if they wanted to abolish municipality as far they could. There's no city beyond that control within the state. So if there's nothing more fundamental in this system of government than plenary state control over municipalities, which means control over the communities where we live?

Well, I'm just asking you in terms of real life examples, I realized that theoretically, the state of California could wipe out all these laws of local municipalities. But in reality, is it really happening is that is that really our problem?

Well, it's a big problem that our communities don't have the power to stop things that are that are promising to harm. So a toxic waste incinerator coming into a community depriving or divesting a community of the ability to say no to that, that's a big problem. Because part of us not being able to protect the environment is it's not being able to stop those projects from coming in.

So in terms of places where you see this the most you see cities swallowing up other municipalities, expanding into those municipalities all the time. And again, there's nothing constitutionally to stop them from swallowing up those municipalities.

But on a practical level, it really comes down to our ability to protect the health, safety and welfare of our communities. And the fact is that that's defined entirely by the powers of the state government determines or deems to give those localities at any given point in time.

Well, I guess, you know, I certainly agree that people should have some autonomy to decide what they want in their community. Whether that autonomy, autonomy could be complete is a question of, you know, it gets complicated, because if each if each municipality had complete autonomy over their section of property, what would that look like? In reality? I mean, wouldn't that create a crazy quilt of regulations that would be impossible to navigate?

Yeah, nobody's suggesting complete autonomy. After all, that's what the Civil War was, was fought over, at least in terms of states rights, rather than localities. But one thing that communities can't do generally, is adopt elevated environmental standard So IE standards above that required by the state. So the state may have a Clean Water Act, for example, that allows 50 parts per million of glyphosate to be discharged into a waterway.

A community then comes in and says, Hey, we think 50 parts per million is not stringent enough. And we can make the case for that we want to set it to 20 parts per million. In almost every state, the state's legislative enactment, the Clean Water Act trumps or preempts the ability of a municipality to pass more stringent standards in a particular area.

And again, it's up to the given state, they can allow it to happen. But that's the whole point of some of this conversation is that that right to protect yourself by establishing clean water and clean air standards shouldn't be reliant or dependent upon the whim of the four state legislators who actually run stuff in the state legislature, which is what it comes down to today. And so so the point here is that is not autonomy in terms of chucking standards.

But in terms of elevating environmental protection standards, human rights standards may sound funny, but in the United States, we think we have a right to clean air and clean water, but we don't doesn't exist legally. There's no legally enforceable right to clean air and clean water. You've may have a right under the Clean Water Act or the Clean Air Act. But those are much different than having a legally enforceable human right to clean air clean water, which right now only exists in one municipality in Florida, in Orange County, Florida, that adopted a right to clean water law last year in November of 2020.

But it doesn't exist anywhere else. And so we live in a myth. This whole system of ours is kind of a myth about who's protecting us how they're protecting us what power we have to protect ourselves. And when you start to peel back the layers, it turns out, we have a lot less than what everybody what everybody thinks we do.

Well, you're listening to Unite and Heal America and KABC 790 This is Matt Matern, your host and our guest today, Thomas Linzey, we'll be back in just one minute.

You're listening to KABC 790. This is Matt Matern, your host and our guest today, Thomas Linzey, a senior legal counsel for democratic and environmental rights. Thomas was getting back to some of the things we were just talking about before the break, you are basically saying questioning whether we live in a democracy when our local communities are unable to stop corporations from coming in and polluting. What's your proposed solution to deal with, with that situation?

Yeah, so So we used to have a system of law back in the late 1800s, that actually recognized a right of local community, self government to put into place elevated standards, whether those were regulatory type standards, environmental standards, human rights standards, that that once existed in the United States kind of petered out at the beginning of the 1900s, as the US Supreme Court began to go in a different direction.

But I think we need to rediscover that kind of structure, that kind of platform, and actually recognize that localities have certain independent power and independent authority not to override the state, but to elevate standards to protect themselves from these kinds of projects coming in, which is, which is where we we got our start, which was communities were calling us about toxic waste, incineration, factory farms, all these kinds of different things.

And when they tangled with the regulatory system, they found that there was a system of law that was not friendly to their local community, that for a corporation to put something in, they just have to negotiate with the state regulatory agency, and other regulatory agency allows them in and there's nothing locality to do. So again, it kind of made us kind of challenge and question this entire structure of law that we have in the country, and whether we really do have a democracy at the local level.

And you can ask anybody that's tried to stop something that's harmful at the community level, they'll pretty much tell you the same thing, which is that it's kind of like whack a mole, or a hamster wheel that endlessly turns, which eventually exhaust the community organization and the default goes right back to the state and the corporation's trying to put something in so until we have that kind of local authority, which by the way, crosses and transcends political levels.

So local control, you know, that key phrase, local self, government, Republican kind of core principles. And now it seems that the progressive folks are kind of getting on that bandwagon, at least when it's used for certain things.

Well, I think that it has a lot of relevance to everybody in terms of our communities are the most basic building block of our democracy and, and the more we can indeed engage people on the community level, then our democracy will thrive. I mean, one of the things I marvel that when I was in New Hampshire a couple years ago, was how their local councils were very, he was effective and people were engaged and, and they were a part of the process and everybody kind of was engaged in the democracy, not everybody, but a very high level participation.

So there were a lot of eyes on what was happening. And I feel like many of us have, have taken our eyes off of the ball and let governmental officials kind of run with it. And, of course, that we end up with a lot of problems when that occurs.

Yeah, and New Hampshire is a great example. Because in New Hampshire, of course, you have town meetings, which have been going on since 17, or actually the 1600s, where the entire town comes together and actually votes on budget issues. People can put something on the town meeting, it's called warrant article, you know, the agenda to get something passed. And so there's a whole different kind of participatory democratic control that happens there.

That doesn't happen much outside of New England, at this point. And I think a lot of people feel distanced from local government, because they say, what's the point? Why should I participate in local government when local government has no power over this particular issue that is of interest to me, which is this toxic waste incinerator coming into the municipality?

And so I think it's not, it's not uncommon, it's also shouldn't be surprising that people feel pretty disconnected from that local governmental system.

Well, we do have some examples of local control and the environmental front, like we have the south coast, air quality management board here. And in Southern California, which has helped clean up the air. I mean, it's still not as as clean as we would like it to be. But they've made some improvements, and it is a higher set of standards, then, generally, the federal standards allow.

Yeah, and again, the state federal interplay is fascinating. You saw it with the CAFE standards, the increased standards for mileage on vehicles that California was attempting to set and have set for a long time that, you know, the interplay between the federal government and state government has a lot of play to it. So that states can put into place elevated standards that are above the federal standards on a bunch of different things.

Unfortunately, that doesn't trickle down to that community level. So cities, towns, villages, counties, what we would call municipal corporations, those are basically at the mercy of state government, and can't in most states set those elevated standards. I think what you're seeing now is kind of a revolt against that system of law.

It's kind of quiet, and but it's gotta have been going on for about a decade, where communities from New Mexico to New York to New Hampshire to Pennsylvania to Ohio, eventually pushed back on that system of law and are beginning to pass these rights based laws, basically, as a frontal challenge to the authority of the state to preempt them from passing these higher standards into place. And I think that's a really good sign at this point.

And how have those done in court in terms of court challenges had, they've been able to stand up to the powers that be to actually protect the rights that they set out to protect. So there's been very few court challenges. And a lot of places when a municipality passes something, just to avoid controversy and PR and funding issues, the corporation will just go someplace else. These laws have been dragged into court and a couple places, and also have been struck down in a couple of places.

But at the same time, when you're up against this huge, you know, heavy system of law that recognizes you as zero authority, and then you're stepping up to the plate to try to put something in place that gives you some leverage over these particular projects. It's no surprise that the first couple of attempts here are probably going to be met with opposition from that other system of government. But in the end, we have to ask whether preemption itself is democratic.

You know, preemption as an authority says that the state can pass a law that knocks out all of your lawmaking authority at the local level. And the question is, is that democratic and shouldn't preemption be limited? And I think some courts in some places like Florida, for example, over gun laws have begun to push back against preemption. There was a law passed by the Florida Legislature that criminalized to the point of putting in jail, local officials that pass more stringent gun safety laws than were at the state level.

And the judge peels that back basically eliminated those some of those criminal penalties from the law. But up until now, it's been a it's been kind of a sacred cow, this preemption doctrine, which is funny because it's not in the US Constitution. Right. Preemption isn't isn't in the US Constitution preemption, isn't it? State constitutions are more or less a judicial in judicially invented legal theory, that now we treat as having the power of God that say well is XYZ He has preempted. That's the head of the conversation.

Well, no preemption itself as an anti democratic vehicle. So the question is, how do you shape it so that localities can put in place laws like right to clean air right to clean water legally enforceable laws that recognize us as having certain rights within a community that these corporations or government can violate?

Well, doesn't the Constitution have a supremacy clause that essentially states that the federal law will trump state law?

Yes, but the states do not have anything like that. In most constitutions, you can peek through everything from the California New York constitution, you won't see a supremacy clause in there. That may sound funny, because we generally recognize states as having that superior power, but preemption itself and that relationship has basically been a judicially invented doctrine. It's not in the text of the Constitution.

Well, certainly, this is a fascinating discussion for those of us who are lawyers, and hopefully, those who are non lawyers are getting a bit out of this as well, because we all operate under the law, and we need to have a certain level of understanding of how it operates in order to be good citizens.

So you're always going to KABC 790 This is Matt Matern, your host of Unite and Heal America. And we'll be back in just one minute with Thomas Linzey, who was the senior legal counsel for the Center for democratic environmental rights.

And this is Unite and Heal America. This is Matt Matern, your host and we've got Thomas Linzey here. Thomas just wanted to ask you a bit about the types of changes that we've seen in the last 10 years you wrote a book be the change, how to get what you want in your community.

And it talks about five different stories of different communities and how they affected change. Have you seen that the arc of the story of environmental rights has shifted dramatically over the last 10 years? Are we kind of in a similar places where we were 10 years ago?

Well, I think the answer strangely enough, is yes to both questions, switches, one that things have moved very slowly, but you would expect things to move slowly, especially in this area, I think change takes a while, took the suffragists 140 years to achieve even the right to vote in this country abolitionists about 80 years. And so the type of change that we're talking about really runs and is hostile to a Western system of law, the Western system, a lot of this European system law that we kind of inherited, essentially treats nature as property.

So the more property you can own, under this system of law, the more nature you can destroy, that's basically how the system is set up. Because a nature isn't seen as a living thing or an animated thing. It's basically treated as something to use and exploit. The old saying is, you know, a tree has no value to the system unless it's cut down. And we still use words like undeveloped to refer to a piece of property that doesn't have any manmade development on it, but could be extremely developed ecologically over millions and billions of years.

And so even our language, our culture, our law, it's all kind of hostile to nature, it's about using and exploiting nature. And that's really different than indigenous cultures, tribal culture, cultures, Native Americans, the United States who see nature as something much different as animated a living entity. And I think the biggest leaps forward over the last 10 years have really been in the area of recognizing ecosystems as having rights.

So we're used to talking about human rights, you know, people's right to clean air right to clean water. We're not so used to talking about the natural environment, ecosystems or nature having legally enforceable rights. But amazingly, back in 2006, on a small community in Pennsylvania, they became the first in the world to draft and adopt a law that recognizes waterways as having legally enforceable rights.

And generally, laws have three parts. They recognize legal rights for the ecosystem. They recognize people in the communities having the ability to step into the shoes of those ecosystems, to file legal actions. And then they recognize courts ability to remedy violations by requiring a restoration of the ecosystem that's been damaged back to its pre damaged state.

And we were called in, we helped I helped the small borough in Pennsylvania in 2006. Pass that law. We then got called into Ecuador to assist with the writing of the New Ecuadorian constitution in 2008. And actually rights of nature was placed into the Ecuadorian constitution in 2008, giving birth to about 60 enforcement cases in that country around rights of nature.

And then the laws came back here the city of Pittsburgh passed their rights of nature law protecting the Three Rivers in the city from fracking, other kinds of development that went internationally, courts in Bolivia and India and Bangladesh. He began issuing court rulings based on his rights of nature concept, calling it the new emerging norm of international environmental law.

And just the first community in Canada a couple months ago passed the first rights of nature, a lot of passed, protect a magpie River in Quebec. And so about three dozen communities in the US, a couple of countries, courts, folks kind of embracing this concept, the Democratic National Committee writing rights of nature into their platform four years ago, to protect indigenous ability to adopt rights of nature laws.

And so I think the place where it's happened the most quickly, has been around these rights of nature laws, which again, bends our brains, because we're used to thinking about people as having rights on nature. But various jurisdictions and courts have now begun embracing this concept of rights of nature as an environmental protection measure.

Well, it's I've talked to some other people about this, and we were discussing that corporations have rights, and they're not people and ships have rights and things like that have rights. So why not a river? Why is, why is a ship or a corporation somehow more worthy of protection than a river?

Yeah, especially because we don't depend on ships for clean air and clean water. In other words, our life support systems that are embedded into the environmental system, it makes the most sense to reserve the highest way of protecting certain things within our system, which has rights, right? So the highest way of protecting certain values within our culture.

Why shouldn't environmental systems have those rights? Like you said, even when ships are in admiralty law, ships can sue each other, you can sue an artifact of a ship that's gone down in the ocean. I mean, there's all kinds of rules that we make all kinds of fake. And the question is, why not now for these environmental rights systems to come into being as a way of protecting the life support systems that we need to survive on this planet as well?

Right. And of course, they're unusual sounding to us. Because up until very recently, it didn't seem like we needed to protect them, because our water and our air was clean enough, up until 100, 150 years ago, where it was really not a problem. And it only became a bigger and bigger problem over the last 100 years.

Yeah, and we also have to understand that even with these 1970s, era environmental laws, that things are worse today, from a climate change perspective, you know, we now have 4 billion pounds of toxic chemicals each year that go into the air and the United States legally, that are permitted by the federal government to be put into the air.

And so we have to really understand that things are worse now by almost every major environmental statistic than they were 40 years ago, before the major environmental laws were passed United States. And we really need a new approach.

And it needs to be one based on indigenous value systems, folks that have understood how to live sustainably within this system within within this environment than we apparently do, who like to exploit and use stuff until they're exhausted, whether it's the oceans, whether it's the forests, you know, we've now killed off half of all biodiversity around the globe. It's a it's a pretty bad portrait of humanity, at this point, how we've treated the planet and how we treat ourselves and we need a new approach.

So you were involved in a film, The 11th Hour that was produced by Leonardo DiCaprio a number of years ago? And can you tell us how you got involved in that project?

Yeah, so I've been a speaker at a conference called Bioneers, the Bioneers conference in San Rafael, California for a number of years. And, in fact, Bioneers the conference itself has been a partner through their indigeneity program on the rights of nature work that's happened in the United States. And so DiCaprio is filmmakers tree media corporation.

So Tree Media is the documentary kind of arm of some of DiCaprio has environmental filmmaking, heard about one of our talks, one of my talks at Bioneers brought us in to do a short appearance on the film.

And so what were you talking about in the film?

Well, basically, that it was the 11th hour allowed, you know, 59 minutes, 57 seconds, that it was past the 11th hour that we're almost to a point of no return that from, you know, from a variety of perspectives, including climate change, which is the elephant in the room now, that the fact is, is that even the most pessimistic projections of climate scientists have proven to be downright optimistic that we may be witnessing the end of you know, not to be dramatic here but life as we know it, the ability to take take things for granted like clean air and clean water.

Or, you know, a climate system that supportive of life in the Pacific Northwest Northwest last year just in Seattle. I think I was reading the other day you had 200 200 heat related deaths. In the heatwave that we had last year, which I lived through, it's 112 degrees in Spokane, Washington, in a place rarely gets above the 90s at any point. And it it's downright unlivable, let alone the consequences to the to, to the snowbank and to the river flow and everything else that happened, just the impact on people what was the astonishing and I think we're, of course, we can't reverse a lot of that stuff at this point, it's done. But we can try to avert the worst of the worst.

And I think the cop 26 meeting in Scotland, which I don't expect too much out of. But there has to be a new outpouring of kind of understanding that forces the hands of governmental officials and other folks in charge to actually make this U turn that we desperately need to make.

Well, you're listening to Unite and Heal America on KABC 790. This is Matt Matern, your host, and Thomas Linzey is our guest. And we're going to be back and just one minute to talk to Thomas about some of the things that we can be looking forward to in the coming years in terms of positive changes that hopefully we can make to save our planet.

And you're listening to Unite and Heal America and KABC 790 This is Matt Matern, your host and we have Thomas Linzey on the show.

And Thomas, talking to you about what we can do in the coming years. What are the most important things that we can do? I mean, from a standpoint of saving the planet, there our pollution, pollution is continuing to increase at a pretty high rate in the system, in terms of CO2 levels and methane levels? And how can we avert disaster at this point in time.

So I think one, we need to give up hope that this federal governmental system that we have rebuilt our state governmental system is actually going to do what we need to do. I don't think that's going to happen. And I think it's for a variety of reasons, but one of which is that we buy into this notion that unlimited economic growth is possible on a finite planet with finite resources.

And it's that kind of cultural grab, which has such a strong hold over the culture and over our elected officials in general, that I don't think that those levels of government are actually going to deliver what we need, I think more of what we need is going to come from a push from the from the lower levels from the local government level, specifically, as they begin communities, our cities, towns, villages and counties began to say, we're not going to do this anymore.

And we don't care that conventional theories of law say that we can't, for example, pass a right to climate that people have a human right to climate. And a number of years ago, an Oregon judge came out with an opinion that said, a right to climate is equivalent to right to privacy, other enumerated unenumerated constitutional rights in the US Constitution.

And I think that that kind of novel cutting edge stuff, recognizing new human rights to climate, and even right of the atmosphere itself or right of the earth, and then taking those rights into court and making them binding, you know, legally enforceable rights taken to court. And on that note, there are two cases today that are pending.

First rights of nature enforcement cases in the United States have been filed. One was filed by indigenous community the wider band of Ojibwe Chippewa, why'd Minnesota against line three this tar sands oil pipeline, which is the climate equivalent to 45 new coal fired power plants being constructed, that the Native community the wider band brought a lawsuit to contending that the line three pipeline violated their rights, both treaty rights as well as the rights of wild rice, which is their cultural crop cultural imperative that they protected with the right to nature law several years ago.

And then the second case was just filed in Orange County, Florida, where a developer wants to drain over 100 acres of wetlands for a 1900 acre development, housing, commercial development. And in Orange County last year, 2020 became the largest municipality, the United States to adopt a rights of nature law, protecting waterways within our county with the right to exist, maintain a healthy ecosystem, be free of pollution, those types of things.

And now there's a lawsuit that's been filed against the developer to stop the development from moving forward because it would violate the right of wetlands to exist in a state where 9 million wetlands have been wiped out over the past 100 years in the State of Florida. So we we've kind of given up hope on the state federal regulators to do anything. And I think that the local level is going to be the next great movement towards environmental protection and protecting climate.

Well, how are the local governments going to stop the level of emissions that come out of our tailpipes, the ships, the power plants, and the like that are the main generators of the problems that we're facing?

Yeah. So I think the climate change stuff has to move from these negotiations between the haves and the have nots, to more of a turning the lawyers loose to do conventional assault and battery kind of cases.

So we partnered with the Maldives, a government number of years ago to talk about putting a right to climate in their international or the National Constitution, that domestic constitution, and then using that the whole utility companies and countries, CO2 emitters into domestic courts to actually hold them liable for what's happening, because a lot of the small island nations like the Maldives are rapidly going under water.

So you're talking about the very existence of the country itself, this period between the work be under the waves. And so I think we have to turn back and understand that we need to put into place a new system, which allows communities to sue use existing legal institutions to actually hold polluters accountable by recognizing these new kinds of constitutional rights, whether it's the right to climate or right of the climate, right of the atmosphere, and then turn the lawyers loose

It's not like we don't know who's polluting. It's not like we don't know who's putting CO2 out, we know. And in fact, with the latest research and studies, we can pinpoint your percentage of liability in terms of being a utility Corporation, the United States or Russia or China, we can actually pinpoint your contribution to the national CO2 emissions.

And then if there was the will to do so could hold them liable for that percentage of contribution that they're making to CO2 internationally around the globe. So we have the tools, we just haven't used them. And I think it's time to turn our backs kind of on these failed international climate negotiations and really move towards these other solutions.

Now with these, the liability be for past acts or for a future pollution, I think it's probably for current pollution that's occurring emissions wise, could be probably woven into past damage kind of thing, because after all, if you were I commit a crime, just because the lawsuit is brought later doesn't doesn't limit us from liability for that past crime.

But I think we need to be talking in terms of plaintiff versus defendant, not COP26, that we need to move towards a system where we release the hounds, the large law firms who could represent countries like Palau, and and Barbados, and these other small island nations, which by virtue of CO2 being emitted from these other places are rapidly putting those nations under water. That's what needs to happen.

I guess the the point there are the counterpoint there would be at the time that some of this was admitted, if we're talking about retrospectively, it wasn't illegal for somebody to drive a car operating plant yesterday. Now, it may be considered to be illegal at some point in time in the future impeding somebody else's right. But at the time that the pollution occurred up to this point in time, it wasn't illegal. So isn't that criminalizing a past act?

Well, we've been through the same thing with tobacco and unleaded and leaded gasoline, I mean, it all comes down to causation. And when that liability is triggered, when when do people know? When do people know that what they're doing actually is having an adverse impact someplace else? And I'd be satisfied, you know, just just little me, but I'd be happy.

If, if if we could actually make entities stop doing it now, you know, an equitable remedy issued by a domestic court in Palau, that would order the a United States utility like Duke Energy Corporation, to stop emitting CO2, or to pay damages for the CO2 that they're emitting currently, on an annualized scale now that we know what the impact of CO2 is, on the small island nations specifically, but also in other communities, Nepal is running out of mountain ice and the Himalaya, which the mountain ice feeds the water flow down to the agricultural areas that's like a disaster waiting to happen.

That's a disaster on on untold levels waiting to happen. And in other places, climate change is having the same effect. So why are we all holding back in the name of a kumbaya moment in Glasgow, Scotland this year for COP26 When we really need to engage as plaintiff and defendant in terms of holding entities liable for what they're currently doing, and getting an injunction from a court to actually stopping them from continuing to do it.

Because right now the utility companies that are releasing CO2 in the air are causing it when nations to disappear, so I can think of no clearer grounds for liability or for a plaintiff and defendant scenario than that.

I guess then the question is, would this be international? And so every single polluter could be liable, regardless of where their plant is?

Absolutely. I mean, the pro rata contribution of the individual emitter can be measured out in some way by courts that are reviewing the situation. But I guess my point to you today is that we're not even doing any of that. There's no there's not a single lawsuit filed today, based on a right to climate for an individual country that's hauling emitters into those domestic courts. It hasn't happened yet.

Well, it's certainly a fascinating legal topic. And it's also an imperative that we do something dramatically different than what we've done to date to stop pollution.

So Thomas, I appreciate you being on the show. It's been a pleasure having you and talking about these issues, because we do need to make changes to stop the level of pollution to save our planet.

So, again, thanks for being on the show, you're listening to KABC 790. This is Matt Matern, your host of Unite and Heal America and we'll be back next week.