Lee van der Voo on the landmark legal fight against climate change – Street Roots News

The Oregon journalist discusses her new book, ‘As the World Burns,’ about young people’s lawsuit against the federal government

For the past five years, 21 young people from across the country have wended their way through the court system as plaintiffs in a lawsuit against the federal government. They allege their constitutional rights to a livable planet have been violated and are demanding intervention from the courts to implement a climate remediation plan across 10 federal agencies and offices nationwide.

Lee van der Voo’s journey following the plaintiffs and their case is the subject of her second book, “As the World Burns: The New Generation of Activists and the Landmark Legal Fight Against Climate Change,” set to be released Sept. 29.

Van der Voo is an award-winning investigative journalist, a co-founder of Underscore Media Collaboration and the former managing director of InvestigateWest. Her first book, “The Fish Market,” about the privatization of the ocean, won the Oregon Book Award for general nonfiction in 2018.

Powell’s Books is hosting van der Voo for a virtual discussion about her book with one of the plaintiffs, Isaac Vergun, at 6 p.m. Oct. 2. You can register online.

She recently sat with Street Roots at her home in Northeast Portland to discuss the book, her reporting on the climate crisis, and bridging partisan divides on existential issues for democracy and the environment.

Chris May: Let’s start by talking about what’s at the center of the book — the young people questioning the value of their own lives while coming up against the entrenched politics and financial incentives of the U.S. government. There are two key questions: Do children have a right to inherit a livable planet? And if they do, does the government have an obligation to protect that right? How close are we to being able to answer those questions?

Lee van der Voo: I don’t think we’ve answered them at all. I think it’s an existential question now. It’s a question for society. It’s still a question before the courts, but whether they will entertain it is another matter. If they don’t take up Juliana v. U.S. again, then we’ve reached the point where the courts, executive branch and legislative branch have pretty much deferred the question.

May: Reporting for this book took you all over the country — from bogs in Alaska to bayous in Louisiana. Can you talk a little bit about why this case ended up happening in Oregon?

Van der Voo: One simple reason is the bulk of the plaintiffs are from here and their law firm is based in Eugene, so it made sense to file in the Ninth Circuit. But the other reason is the Ninth Circuit is where you would go with a case like this. It’s the court that’s probably the most liberal.

They’re asking the court to order creation of a climate remediation plan. That’s something the federal court here in the Pacific Northwest has done in presiding over treaty rights to fish and salmon issues. The fact that there’s some judicial experience with this unique kind of remedy is really a great reason why.

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May: Mary Wood, the legal mind behind the theory underpinning this case — her ideas are controversial to some, but intoxicating to others, including Julia Olson, who is the leading attorney for the plaintiffs. In the book, Wood told you she considers modern environmental law a “failed legal experiment,” and called the statutory fruits of the first Earth Day in 1970 – The Clean Air Act, The Clean Water Act, The Endangered Species Act – “permission slips for unmitigated disaster.” What is she talking about?

Van der Voo: She’s basically talking about how these environmental laws that came out of the first Earth Day some years ago created a regulatory framework essentially for permissions on pollution. I think people presume that because we have a Clean Air Act, you can’t pollute, or a Clean Water Act. That’s not true; there’s just a process by which you get permission to do so. For example, we know living here in Portland that most of the waste that flushes through our sewer system ends up in the Willamette River, and that permitting process to dump it there is totally a Clean Water Act process. We know where it led, right? She’s making the argument that these laws are insufficient to really protect the environment.

May: She talks about “pulling the ivy” off some of old laws that predate even the Constitution. How does she see a way out of this Byzantine regulatory structure?

Van der Voo: She’s talking about going way back to pre-constitutional law to public trust law, which is essentially what the founders carried over with them in their boats. This is going back to 535 AD and the Magna Carta. What she’s saying is that fundamentally, baked into the Constitution, and even pre-Constitution, is a doctrine called Public Trust Law, and it essentially means you entrust the government to protect resources for future generations in perpetuity. And that there’s a lot of language in speeches and letters of the Founding Fathers that indicated that that was their intent when they wrote the Constitution and created protections for property and life and liberty.

There’s a lot of examples of other nations having baked this into their constitutions and relying on international law that carries some public trust. So, for example, the Supreme Court of India holds its natural gas reserves in public trust.

May: Can you talk about the burden these young people are carrying with them and how it’s taken a toll?

Van der Voo: They have personal climate impacts. The youngest plaintiff, Levi Draheim, lives on a barrier island off the east coast of Florida and his home is going under water. Miko Vergun, who comes from Beaverton, was adopted from the Marshall Islands — that’s another place that’s going under water. She’s watching her birth relatives, community and culture deal with that. Nathan Bering lives in Ester, Alaska, and is watching the melting of the permafrost moving northward of the boreal forest and changing the landscape.

For some of them, it’s more than just watching the environment change. It’s real life, day-to-day, highly personal impacts that will change their lives. For somebody like Levi to not be able to go home in 20 years and show his kids where he grew up, that’s a painful reality that’s coming toward him. The burden they carry is the daily awareness of that. To be engaged with it enough to stand in front of it, the way that they do, is to really have to feel it, all the time. I think there’s a lot of wear and tear on the plaintiffs. At the same time, the ones that I have asked have said that they do feel empowered by this process by being able to stand up for climate remediation and to talk about their experience.

May: In the book, you describe how the fossil fuel industry has mirrored Big Tobacco’s playbook by funneling billions of dollars into public disinformation campaigns. The lead attorney for the federal government is a former BP lawyer. What is the government’s legal strategy?

Van der Voo: The government’s legal strategy is twofold. But first, I think it’s important to note that the government has conceded in this case that climate change is real, its effects devastating and imminent, and that the U.S. government is responsible for 25% of historic carbon accumulation in the atmosphere. That’s staggering, and I don’t think that it’s really widely known. The fact that this case hasn’t had its day in court has really obscured that fact that even the Trump administration does not dispute these things — even though in the daily, theatrical partisan environment that we’re all living in, you would think otherwise.

How they have structured their case is essentially fighting this two-pronged approach. First, it’s a cause-and-effect thing: Even if you have suffered these harms, you can’t prove that climate change caused them. So you have increased allergy symptoms or asthma from worsening pollen; you can’t say that climate change caused that for you. Even if climate change is real and imminent, the fact that it isn’t here to the degree that you feel yet, and you haven’t suffered all your harms yet, means that we can’t say, specifically, how you’ll be harmed by climate change. So you can’t sue us over that.

Beyond that, we can’t know what the worst effects of climate change will be or when they’ll arrive, so again, you can’t sue us over that. It is very Big Tobacco. Even though smoking causes cancer and cancer kills people, you can’t really prove that smoking caused your cancer.

The number of emergency petitions filed in this case is really staggering and unique, and it demonstrates the extent to which the Trump administration broke new ground in trying to keep this case out of the courts. In 16 years prior, there were eight uses of the writ of mandamus, which is essentially the nuclear option where you use it in court to say that you’re being oppressed by a lower court or abused by a lower court and you take it to another higher court to toss the case. There were 20 uses of the writ of mandamus between Trump’s inauguration between January 2017 and the date of this trial, which was Oct. 29, 2018. Ten of those emergency petitions were filed in October. That’s incredible. So having a stacked Supreme Court has had an effect on the way that the presidential administration has moved through legal challenges.

May: Even though the government never really wanted this trial to happen in the first place, they still had to prepare in case it did happen. You spent weeks poring through all these expert testimonies and reports that were filed in preparation for the trial, and that gave you a pretty good idea of how the trial might play out. What stuck out?

Van der Voo: Going through those reports was a really hefty undertaking. It was right around 1,000 pages of expert reports, very dense stuff. It took me about five weeks to read it all, closely. The thing that really stuck out to me was that I think the argument against climate remediation boils down to a lot of naysaying. A lot of the experts on the government side of things point out: You know, we don’t know what will happen if we attempt to convert the energy ecosystem into something different. Or it could be really hard. Or we don’t know what will happen if we try to change the land management system; that could be really hard.

All of these things, of course, are going to be really hard, and there’s no disputing that they will change American life. I was really struck by the tepid, rigid unwillingness to experiment with these concepts. It strikes me as not something you’d hear as an American point of view in many respects. It’s not a nation that’s afraid to invent things or mess around with technology — yet here we are, with the government taking this position that we’re just going to do nothing, even though we know that doing nothing will bring about disaster, and we admit that. Because doing something is hard. That’s essentially the argument.

May: Another topic that’s covered in your book is how mainstream commercial media have dropped the ball when it comes to covering the climate crisis, whether it be legitimizing debates over climate science or marginalizing the voices of youth leaders. Xiuhtezcatl Martinez, one of the plaintiffs who has been in front of cameras and microphones since he was a young child, knows a lot about this. I’d like to read something he said:

“It’s much easier for the media to highlight a young, privileged, white Swedish girl than it is to talk about the young water protectors that are fighting pipelines in South Dakota, or the many, many young leaders of color that have been on the front lines of this work for generations, who have inherited these struggles.”

Van der Voo: I think Xiuhtezcatl just hits it right on the head. It has more to do with the selection of icons and the ease with which people adopted the plight of a young white girl over the plight of Native peoples who have been raising their voices over these issues for a long time.

I don’t want to be dismissive of what Greta (Thunberg) became and the scale of the reaction to her plight. The fact that she galvanized millions of young people of course makes her a news item; it makes it easy for the media to engage with the story, as opposed to elevating voices of few people who haven’t gotten that attention yet.

As a critique, what I would say is that we haven’t done an especially great job of understanding the story from the perspective of the young people who are here in our culture. I think now everything is sort of being retroactively framed through: It all began with Greta. And that’s not true, that’s very far from true. 

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May: If this trial were to happen, it could be what you call “the television version of a conversation America needs to have.” Where do conversations about social justice and racial justice fit in with climate justice?

Van der Voo: They absolutely fit in because marginalized communities are going to be the hardest hit by climate, and so are people who face socioeconomic disparities. Millions of coastal Americans are gonna be in the way of floods. Places like Bangladesh, a lot of Black and brown people.

Right now, I listen to the tone of the conversation in the nation and in our community, and I feel like we’re getting to a dangerously partisan place around equity issues. It’s just kind of playing into the power of the folks in charge — often the very wealthy people who perpetuate the systems — to divide ordinary Americans around everyday things. In fact, we have far more in common in uniting against these common enemies than we really think. I look around in Portland now, and I feel like we’re really far down a road of conflict with one another, and we’re not fighting the real enemies.

May: Do you see a way back, or a way out? What is the key to recognizing solidarity with people who might have different political opinions or come from a different place?

Van der Voo: I think there’s a difference between being politically active and being partisan. I appreciate everybody’s having and expressing views, and I want people to be in the street as much as they want to be in the street, no matter who they are, saying what they want to say. But we’ve kind of pushed into this place where everybody is in everybody else’s backyard looking for a fight. I look at what’s ahead in the next eight, 10 years on climate. We don’t have time for this.

I mean, that’s me minimizing how important the equity piece is, and I don’t want to do that. But I just think all this anger, maybe it belongs with: Why are 30 million people unemployed? Why are four times the number of people who died in the Vietnam war dying in a pandemic in the richest nation in the world? Why is our health care system so compromised in facing this thing? You can turn it over 100 different ways, and you always come back to who’s in charge and what the money’s doing, right?

That’s where I feel, as Americans, we have a bigger battle. We have a bigger battle than with one another. It’s these things that, to me, are what perpetuate climate change. It’s Big Money, and it’s entrenchment with our government perpetuating the status quo. I want us to fight that fight. I don’t want us to fight each other.

May: I think the plaintiffs also struggle with how their individual actions can contribute to addressing problems that are beyond the power of an individual to solve. Part of the reason the lawsuit is targeting the federal government and not you and me is because it’s a lot harder to boycott our refrigerators than it is to not use straws in restaurants anymore. Where do individual actions fit into affecting systemic change?

Van der Voo: This was an experience that I had in writing the book, and thinking very deeply about climate change. I have this experience with everything that I’m reporting, but you learn about it to the point where it’s almost paralyzing. The decisions that you make, day to day, like should I or should I not eat this container of yogurt because it comes in a plastic thing. You can take that to such an extreme, all day long, and I think that what we’ve learned from the data is that as important as it is to be intentional in the world, if individual action were all that we did, we would remedy about 2% of carbon emissions. Most carbon emissions are coming from systemic processes that really need to transition to something healthier. Energy infrastructure being a big one. But also unregulated refrigerants, composting unused food waste, deforestation. Being mindful about how one moves through the world is a great intention, but the most powerful impact that individuals can have is just being mindful of the issues and thinking about them when they engage with their democracy or their activism.

May: In your work now, thinking about these issues, how do you approach reporting on the climate crisis? 

Van der Voo: I know that the perspective of young people is the perspective that matters most. Not to disenfranchise everyone else, but they’re the ones who are going to have to grow up and inherit this issue. I think that their voices have been too marginalized in this conversation, when really it’s largely about them, their futures and the futures of their prospective children, grandchildren. A lot of us who are making these decisions right now are not going to have to deal with the consequences of our actions the way that they will. Young people and what they have to say about this problem, I think, matters tremendously and is going to be a huge part of my work going forward.

And, I think that I’m never going to do that journalistic balance thing with a climate story. I just refuse. Climate change is a fact, and I just am not going to engage in weighing science like it’s a public discourse, like it’s optional whether or not we’re going to believe it. I’m not going to treat it any differently than I would treat reporting on a car crash. You don’t show up to the car crash and ask everybody if it really happened.

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