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Editor's Note: Call and Response Between Science and The Law of Rights
Friends,
The law changes very slowly, often in response to crises. As you can imagine, this often means two things. The first is that the law does change. The second is that the slow rate of legal change means that justice delayed is justice denied. In this issue of the Networker, we will tell stories of crises, legal changes, justice denied and justice finally given.
Those crises that instigate legal change? They forever change the future, particularly when law and policy recognize that the crisis must never happen again.
The international community addressed the atrocities committed during WWII by adopting the U.N.’s Universal Declaration of Human Rights. We are now seeing a rapid evolution of environmental rights because of crises ranging from climate change and biodiversity loss to toxic chemicals. Lawmakers are heeding scientists’ warnings and responding to enormous public pressure.
Fifty years ago, after Rachel Carson warned about the dangers of pesticides in her book Silent Spring, several states in the U.S. adopted constitutional amendments that recognized the right to a clean and healthy environment. In those states, that right stands alongside other well-known rights such as freedom of speech or the right to assemble.
Only six states have adopted the right to a clean environment, although several states are considering adding it to their constitutions. Notably, on November 2nd New Yorkers will vote on becoming the seventh state to assert the right to a clean environment as a constitutional matter. “If approved by voters, the amendment will add a new section (19) to the state constitution in the Bill of Rights (Article I) that reads: § 19. Environmental Rights. Each person shall have a right to clean air and water, and a healthful environment.”
If you think this is legal piecemeal and wonder why, if you are an Iowan, you don’t have the same rights as an Illinoisan or a Pennsylvanian, then you will welcome a landmark U.N. resolution passed in October 2021. This resolution recognizes the right to a “clean, healthy and sustainable environment” as a universal human right. While a U.N. resolution does not carry legal force, it does carry moral force. It sets the standard for nation states’ law and policy.
One of the most striking things about the U.N. resolution is that it doesn’t just add the right to a clean environment to a list of separate rights, it asserts that this right is essential for all other human rights. It isn’t isolated and discrete. It isn’t one more right added to a list. It is the ground for all other human rights. Here’s the exact language: “Acknowledging the importance of a safe, clean, healthy and sustainable environment as critical to the enjoyment of all human rights…”
The U.N. right is coupled with a responsibility on the part of government to guarantee a clean environment. Some states, like Hawaii, have paired the right to a clean environment with the responsibility of the state to serve as a trustee of natural resources. Interestingly enough, the Hawaii Supreme Court required the use of the precautionary principle as a key mechanism to enforce the twinned constitutional right to a clean environment and the responsibility of the state to be a steward of the environment.
The U.N. resolution extends the right of a clean environment to future generations. “Recognizing that 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…”
In this issue of the Networker, we tell three inter-related stories as a call and response between science and the law of rights.
In our first story, SEHN’s senior scientist, Sandra Steingraber writes about the powerful open letter she sent with over 300 scientists to President Biden, sounding an alarm about climate change. Does it matter if scientists convey their alarm to presidents? At what point does law adapt to a crisis?
Carmi Orenstein, SEHN program director, tells the second story. Reporting on a 1959 partial nuclear meltdown at the Santa Susana Field Lab (SSFL) in the Simi Hills outside of Los Angeles that was never comprehensively cleaned up, and a new study documenting spread of its radioactive contamination, Carmi provides an “object lesson in what happens when the right to a safe environment is not universally acknowledged and when secretive, long-forgotten toxic legacies of the Cold War meet the unpredictable chaos of the current climate crisis.” What rights does the community have and what duty do corporations and government owe to communities that have been denied a clean and healthy environment?
Finally, we invite you to tune in to a legal case brought by the Global Alliance for the Rights of Nature (GARN) in an international tribunal. I will be serving as a judge determining whether the rights of nature and of future generations are being violated by the lack of action on climate change. The tribunal will be held in conjunction with the world forum on climate change known as COP26.
The tribunal on the rights of nature points to the future of law and policy by recognizing that humans are not the only entities that should have rights. Visionary activists and scholars have claimed legal rights for rivers, wild rice, and forests.
GARN says this about the rights of nature: “It is the holistic recognition that all life, all ecosystems on our planet are deeply intertwined. Rather than treating nature as property under the law, rights of nature acknowledges that nature in all its life forms has the right to exist, persist, maintain and regenerate its vital cycles. And we – the people – have the legal authority and responsibility to enforce these rights on behalf of ecosystems. The ecosystem itself can be named as the injured party, with its own legal standing rights, in cases alleging rights violations.”
Fifty years ago we began an odyssey of legal reformation in response to Rachel Carson’s clarion call about the threats to the natural world. The threats to the Earth’s systems are grave. The toxic legacy of chemicals and radioactive materials, climate change and the loss of biodiversity demands that we change our legal systems. Science and every code of ethics has given us a mandate to protect the rights of future generations, communities and the Earth itself. The law must follow.
Carolyn Raffensperger
Executive Director
The Scientists' Letter to President Biden
By Sandra Steingraber
On October 7, I submitted a letter to President Biden signed by 338 U.S. research scientists, including a veritable who’s who of our nation’s top climatologists and public health experts. Among them was Peter Kalmus, a climate scientist at NASA’s Jet Propulsion Laboratory and associate project scientist at UCLA’s Joint Institute for Regional Earth System Science & Engineering.
In the weeks leading up to the release, as we drafted the letter and worked through its various iterations, Peter and I had multiple, anguished conversations about the value, or non-value, of scientists speaking directly to Presidents of the United States about the urgency of the climate crisis.
It’s not like either one of us is new here. Between us, we could recall multiple such letters in years past and knew that the eloquence and urgency of scientists speaking truth to power had, again and again, failed triggered action of a magnitude that came even close to the addressing the climate crisis in a meaningful way. Why would we think our attempt would be any different?
On November 5, 1965, the president’s own science advisors warned President Lyndon Johnson about the threats faced by the nation from rising carbon dioxide pollution in the atmosphere.
In November 1965, I was just learning how to read.
On January 14, 1981, the President’s Council on Environmental Quality, issued the last of three reports on global warming, commissioned by President Jimmy Carter, that was entirely focused on the scientific evidence detailing the destabilizing effects of carbon dioxide on the climate system.
In January 1981, I was learning for the first time about the climate crisis in my undergraduate environmental studies class. It was shocking to me. And surreal. I recall blurting out to the cashier at the campus store, “The polar ice caps are melting. Did you know that?”
On June 24, 1988, NASA climate scientist James Hansen testified before Congress that climate change had already begun, that the ongoing warming trend was not a natural trend but was caused by a build-up of carbon dioxide and other heat-trapping gases in the atmosphere.
In June 1988, I was finishing my Ph.D. in ecology. I covered Hansen’s testimony in a story for the Michigan Daily, expressing my relief, as a young scientist, that finally, finally, government policy would respond to the climate science. Ronald Reagan was the president.
And now, here we are, 33 years later, and the gap between what we scientists know about the climate emergency and what our political leaders are doing about it has never been greater. In spite of lots and lots of letters.
But draft an open letter from the nation’s research scientists to the current president we did, and this time our message was guided not solely by the findings of science but by how we, as scientists, have been radicalized—to use Peter’s word—by the patterns we see in our own data. Our opening sentence:
As U.S. scientists, we write with the utmost alarm about the state of our climate system.
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The 1959 Santa Susana Field Lab Disaster, The 2018 Woolsey Fire, and the Right to a Safe Environment
By Carmi Orenstein, MPH
When the United Nations Human Rights Council officially recognized access to “a safe, clean, healthy and sustainable environment” as a basic human right earlier this month, it was an acknowledgement fifty years in the making. It was backed by an international grassroots effort, with the journey to the final vote including the voices of more than 100,000 children around the world and multiple generations of allies pushing against powerful corporate opposition.
Just about the time that this half-century-long campaign to enshrine the right to a safe environment kicked off, a story about the horrific violation of this same human right and its cover-up emerged in a community near my own childhood home in Southern California. In 1979, a UCLA student named Michael Rose uncovered evidence of a partial nuclear meltdown at the Santa Susana Field Lab (SSFL) in the Simi Hills outside of Los Angeles. The SSFL, formerly known as Rocketdyne, played key government roles throughout the Cold War, developing and testing rocket engines and conducting experiments with nuclear reactors. Today, as the result of a recently published peer-reviewed study that represents the dogged efforts of both professional researchers and a team of specially trained citizens, we have solid evidence of the spread of dangerous contamination from that site.
Working with nuclear safety expert and then-UCLA professor Daniel Hirsch, Rose discovered documentation that the partial nuclear meltdown had occurred at SSFL twenty years earlier in 1959, releasing up to 459 times more radiation into the environment than the infamous meltdown at the Three Mile Island nuclear reactor in Pennsylvania. Unlike the Three Mile Island facility, the SSFL reactors lacked containment structures—those tell-tale concrete domes that surround commercial nuclear power plants to prevent radiation spread in case of a nuclear accident.
In addition to the 1959 meltdown, at least three of the site’s other nuclear reactors experienced accidents (in 1957, 1964 and 1969), and radioactive and chemical wastes burned in open-air pits as a matter of practice. A “hot lab,” which may have been the nation’s largest, was also located at SSFL, and, in 1957, it burned and was known to have spread radioactivity throughout the site. A progress report from the period states, “Because such massive contamination was not anticipated, the planned logistics of cleanup were not adequate for the situation.”
The rest of this story is an object lesson in what happens when the right to a safe environment is not universally acknowledged and when secretive, long-forgotten toxic legacies of the Cold War meet the unpredictable chaos of the current climate crisis. Real people are harmed in ways that are not easily remediable—including, perhaps, members of my family.
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5th International Rights of Nature Tribunal
By Global Alliance for the Rights of Nature
The Fifth International Rights of Nature Tribunal will be heard on the 3rd and 4th of November, 2021, in Glasgow, alongside the COP26 organized by the United Nations Conference on Climate Change (UNFCCC), where it will deliver its message in the very arena where the environmental policies of the world are being debated, standing as an alternative to the many false solutions that are being peddled there.
Join us this November in defending the Rights of Nature, and add your voice to the popular demand for governments and courts all around the world to begin playing their part in stopping the ecological crises of our day.
The Fifth International Rights of Nature Tribunal will hear two of the most fundamental ecological cases facing the world today. Carolyn Raffensperger, Executive Director of SEHN, will be serving as a judge determing whether the rights of nature and of future generations are being violated by the lack of action on climate change.
Register Here!
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