This story is part four of Deny and Delay: Inside the Climate Disinformation Machine, a series on the effects of climate misinformation on democracy. Read part three here. Co-produced with Columbia Journalism Review and guest edited by Sandra Steingraber.
THROUGHOUT 2021 AND 2022, THE BIDEN Administration attempted to pass climate policy, blocked at every turn by Senators Joe Manchin and Kyrsten Sinema. Finally, in August 2022, Democrats celebrated the passage of the largest climate bill in U.S. history, the Inflation Reduction Act. Boosters for the IRA claimed it would slash carbon emissions 40 percent by 2030. Critics — those who worried aloud about the dealmaking with the fossil fuel industry required to pass the bill — were dismissed as ignorant or naïve. Behind the scenes, supporters of the bill called critics and asked them to get in line. This was the last, best shot at getting anything at all done on climate while Democrats controlled Congress, the argument went. Don’t let the perfect be the enemy of the good. We’ll figure out the details later.
Those details are at once complicated and simple. Caveats and detailed requirements and loopholes abound in the IRA, but in a nutshell it is a spending bill that incentivizes emissions reductions, but does not require them. As such, it can only be as effective as state and local governments—and in some cases consumers—make it. And thanks to the fossil fuel industry’s lobbying, there are plenty of incentives for oil and gas projects too. The IRA requires, for example, that the Interior Department offers a minimum of 2 million acres of public lands and 60 million acres of offshore waters for oil and gas leasing each year for a decade as a prerequisite to the installation of any new solar or wind energy. The IRA also revived several specific lease sales, including an 80 million acre sale in the Gulf of Mexico that had previously been overturned in court for failing to adequately analyze its climate harm. Deals like these treat communities on the front lines of the climate crisis as sacrifice zones. They also open the door for increased emissions that would undercut gains made on the emissions-reduction side of the equation.
Read more from the Deny and Delay series here.
The IRA is a great example of what climate disinformation looks like across the political spectrum. Yes, there’s the sort we’re used to, the obvious denialism: climate change isn’t real, it’s a hoax, it’s caused by volcanoes and the sun, it’s a natural cycle, it’s not as bad as everyone says, or even more CO2 actually grows more plants, so it’s great! Those messages have been coming from the fossil fuel industry and its supporters for decades. But then there’s the flip side of the coin—the tendency to limit our definition of “solutions” to slight technological or political tweaks; to tell the public, don’t worry, we’re on it, your life doesn’t need to change at all, just plug your stuff into a different energy source; to cling to the belief that “the market” will fix it. These messages may often come from so-called “moderates,” but they’re pushed by the fossil fuel industry too. On climate, we’re often given two options: it’s not happening or we’ll figure it out. Proponents of both accuse those who don’t agree with them of being alarmists, or “doomers.” But being realistic about the limits of half-steps isn’t doom or pessimism—especially as climate scientists are increasingly telling the world that limiting warming to 1.5 degrees or less is no longer possible—it’s determination. It’s holding out hope that one day we will finally get to the part where we address the root causes of this problem. It’s confidence in humanity’s ability to walk and chew gum at the same time, to make the small changes that buy us the time we need to make the big ones, yes, but not to lose sight of those very necessary big changes along the way.
The fossil fuel industry’s goal when it comes to the IRA is to maximize the benefit of the legislation for fossil fuel projects and minimize the benefit for renewables. No surprise, then, to see the resurgence of old-school climate denial right alongside the negotiations around the IRA. Most climate folks over the past decade or so have given up on arguing over whether climate change is real and focused instead on what sociologists call discourses of delay, or “predatory delay”—narratives around how expensive it is to tackle climate, for example, or those that downplay the severity of the crisis. But in the lead-up to the IRA’s passage, people were suddenly arguing again about the very existence of climate change, whether fossil fuels really had anything to do with it, and whether too much carbon dioxide was even bad for the atmosphere in the first place. The entire climate discourse was catapulted back to 1995. By November 2022, the Heartland Institute, an early purveyor of climate disinformation, was publishing new Facebook ads that could have been published back then. There is “no consensus on climate crisis,” they proclaimed. “New poll debunks the 97% consensus claim on climate change.”
Long-dormant industry-fueled opposition to renewable energy came roaring back too. Astroturf groups—groups that look like grassroots community organizations but are actually funded by industry—began pushing lawsuits to block wind and solar projects. Longtime anti-renewable operatives began making the rounds again with old disinformation talking points about whether wind and solar are reliable (reliability issues have been almost entirely solved by battery storage and networked renewables), whether they kill too many animals (they don’t) or make too much noise (nope), and whether mining for rare earth minerals is actually more damaging to the environment than drilling for oil (it’s a problem for sure, but not worse than oil spills and climate change).
These zombie narratives are working. In just the past few months, New York, Idaho, and Ohio have shelved planned renewable projects. Ohio lawmakers also redefined fossil gas as “green energy” in order to take advantage of IRA incentives meant for renewables and apply them to gas. It’s a strategy that will likely be rolling out to other states soon, thanks to model legislation from the American Legislative Exchange Council (ALEC). As Maxine Joselow reported in The Washington Post, the idea emerged at the annual ALEC conference in late July 2022, during the exact same days in which the IRA was first announced. “Europe has now defined nuclear power and natural gas as clean energy sources of energy. And guess what? They are clean energy sources,” Stephen Moore, a conservative commentator, said on a panel at the ALEC conference, to thunderous applause. “Change your renewable energy requirements,” he continued. “If you don’t get rid of them altogether, you should redefine what clean energy is to include yes, clean nuclear power and yes, natural gas.”
It’s hard to see how the IRA will deliver that 40% cut in the face of this sort of opposition. It’s even harder to understand how anyone failed to predict this exact turn of events given that climate obstructionism really hasn’t changed much in 50 years. A lot of people look at that and see the need for better state and local policy, or massive climate protests, more lawsuits and Congressional hearings, or more boots on the ground in rural areas. And, OK, yes! Sure. Fine. But this is also the latest example of a climate movement that, even after decades spent watching the same old problematic myths persist and succeed, cannot see the forest for the trees. A movement that continues to put the cart before the horse, insisting that the conversation focus on “solutions” and avoid ever talking about how we got here in the first place.
I’m not suggesting that we curb renewable energy development or wait til the U.S. government functions like an actual democracy to pass climate policy. Of course we have to throw everything at the wall while we still can. But “everything” must also include rethinking our decision-making framework altogether so that maybe, eventually, we have a shot at not repeating the same damn mistakes over and over for the next century. One need only to look at attempts to electrify the transportation sector to understand why: the current push to swap electric cars for gas-powered ones has already been deemed inconsistent with meeting global climate goals. And that’s just looking at greenhouse gas emissions, never mind the air pollution, water pollution, and attacks on Indigenous sovereignty that come with the mining necessary for industry-standard electrification. But it doesn’t have to be that way. We have a golden opportunity here to avoid repeating the mistakes of the past. Researchers have modeled various scenarios in which we both decarbonize the transportation sector and shift away from car-dependency, for example. Ways in which we can shift not just the fuel source but, more broadly, how we understand and strategize transportation.
Adopting a new decision-making framework is not necessarily the “thought exercise” it might appear to be. There are examples all over the world and even in some (rural! conservative!) pockets of the United States that place human and ecosystem health above profits. The legal concept of “rights of nature” is a perfect example: it gives legal rights to ecosystems and in so doing places a whole new set of values at the center of policymaking and decisions about everything from land use to energy. Giving rights to ecosystems may sound like the most woo-woo of all the tree-hugging ideas you’ve ever heard, but let’s put the hippie punching aside for a minute and look at what rights of nature actually does, the critical flaws in U.S. systems that it fixes, and, importantly, how quickly it could work.
Climate scientists are increasingly telling the world that limiting warming to 1.5 degrees or less is no longer possible.
Rights of nature is a legal framework that bestows upon ecosystems the right to survive and thrive. In so doing, rights of nature also grants the communities surrounding those ecosystems the ability to protect those rights. So if, for example, you depend on your local lake for drinking water, rights of nature gives you the ability to defend that lake’s right to not be polluted. If a company infringes on those rights, you can sue them. And if you’re thinking, “Sounds weird to let a lake file a lawsuit,” remember that, in the U.S., the company—a not-at-all alive thing that has zero obligation to benefit anyone— has its own rights; more rights than you or I at this point.
Rights of nature provides a new decision-making framework for every aspect of society, making preserving life, rather than profits, the goal. The concept emerged from Indigenous approaches to society and justice, approaches that treat humans as part of an ecosystem, not separate; obligated to protect our surroundings, rather than entitled to control and extract from them.
“Rights of nature is finding a way to bring in natural law, which predates legal systems, into so-called Westernized frameworks, and incorporating those values into something that can actually be protective of existing beings like river systems or wild rice,” Tara Houska, tribal attorney, founder of the Giniw Collective, and former advisor to Senator Bernie Sanders on Native Affairs, explained. “It’s a really powerful tool that has manifested in different ways across the globe. I think it’s also kind of a test to see where respect lies for Indigenous sovereignty.”
Indeed, most countries that have enshrined rights of nature into law have strengthened Indigenous sovereignty in parallel. Were the U.S. to embrace rights of nature, it would have us thinking very differently about shared resources like water, land, and air, and what we do with them. Whether you want to mine for lithium or drill for oil, build a road or a high speed railway, graze cattle or raise them in confinement, if rights-of-nature was the law of the land, you’d need to think through all of the various impacts that decision would have, not just on you but on the ecosystem we’re all dependent on and part of.
That shift in perspective would also address a fatal flaw in the U.S. operating system: its warped social contract. The United States was one of the first countries founded after the invention of the concept of “the social contract.” The big Enlightenment philosophers — Thomas Hobbes, John Locke, and Jean-Jacques Rousseau — all had their own particular takes on this, but in broad strokes the social contract is the agreement between individuals, the larger population they’re part of, and the government. I will stop stealing my neighbor’s food in exchange for some land and water and the protection provided by a military, for example. Every country has its own social contract, its own boundaries around which freedoms individuals have to give up in exchange for which benefits from the government and from each other. But in the United States, there was a silent third party to that contract right from jump: the corporation. Corporate interests—from industries that needed slavery to remain profitable to those that needed unfettered access to cheap labor and natural resources to be viable—have always had not just a say, but the loudest say over how things work in the U.S., with few, if any, of the responsibilities. It’s all of the benefits of society and all the freedoms of individualism. Rights of nature kicks that idea to the curb. No person or entity is more important than its ecosystem, no one gets out of their obligation to protect it.
In Ecuador, the first country to write rights of nature into its constitution back in 2008, a landmark ruling in 2021 showed how this all might work in practice. Ecuador’s Constitutional Court (their equivalent to the U.S. Supreme Court) heard the Los Cedros case, the first rights of nature case ever to appear before it, in late 2020. With the country’s oil revenue declining in 2017, the Ecuadorian government had opened up public lands for mining concessions—six million acres, including at least 68 percent of Los Cedros, a protected cloud forest. The idea was that those mining profits would make up for lost oil revenue, and president Guillermo Lasso painted it as a “green” initiative; many of the minerals being mined in Los Cedros would be put to use in the global push to electrify everything. But because there was that rights of nature provision in the Constitution, citizen groups were able to sue the government and try to block those permits. They called the government’s decision unconstitutional because it was putting the forest at risk. In December 2021, a year after they’d heard the case, the justices ruled, not only rejecting the mining permits for Los Cedros, but also laying out how government agencies should be thinking about and applying rights of nature.
“They talked about not only the forest but also the biodiversity and also about the water. And they explained what all these rules mean for the authorities,” Constanza Prieto, the Latin America Legal Director for Earth Law Center, which intervened in the case, explained to me. Prieto said the ruling was “like a class on what rights of nature should mean for the authorities, and also for judges and legislators.”
“It was absolutely radical. I think it’ll go down as an extremely historical moment that could change the mindset of the environmental movement,” Joshua Pribanic, an investigative reporter and co-founder of the watchdog news organization Public Herald, told me. Pribanic and his Public Herald co-founder Melissa Troutman made a documentary about rights of nature, Invisible Hand, in 2020, and have been following not only how the concept is being implemented in places like Ecuador, Chile, Panama, Bolivia, New Zealand, and Uganda, but also—perhaps less expectedly— in rural towns in Pennsylvania and Ohio. Grant Township, in Pennsylvania, for example, invoked what’s called “home rule,” which gives towns the option to kick the state out of their local permitting decisions, and wrote rights of nature into its town charter in order to decline a permit for a fracking waste disposal site. The state has since taken the town to court (with the oil and gas company as its co-plaintiff in case there’s any question of who the state is working for), but the genie is out of the bottle in Pennsylvania, and lots of towns are now looking to follow in Grant’s footsteps.
In Pennsylvania, upstate New York, and Ohio, several typically conservative, rural communities have embraced rights of nature as a potential pathway to protecting their drinking water. It brings together a variety of groups in ways most “climate solutions” just don’t. In Coudersport, Pennsylvania, for example, environmentalists, tribal leaders for Seneca Nation, and local Republican groups came together to make a rights-of-nature argument to protect the Allegheny River from fracking.
“You had a coalition between a very rural Republican community and the Seneca Nation, which was one of the most unique coalitions of people I’ve ever seen come together on something,” Pribanic said.
“What I’ve been really struck by is even a lot of very conservative communities all want greater regulations than what the state is giving them,” said Colin Jerolmack, a professor of sociology and environmental studies at New York University.
Jerolmack’s book Up to Heaven and Down to Hell chronicles Pennsylvania’s fracking boom. He explained that when he first started researching the book in his home state, more than a decade ago, there weren’t many critics of fracking. But over the years, as it started to impact water and soil and air, he saw a shift in attitudes. It had nothing to do with environmental policy or political ideology, it was about something more basic: fairness. “One way to think about fairness procedurally is, I have a say in things that affect me and it’s not fair that property rights are so strong that I don’t have a say in my neighbors’ decision, even though I can wind up with contaminated water,” he explained.
“We treat so many environmental decisions as akin to free speech in the United States,” Jerolmack added. “I can eat what I want to eat. I can drive what I want to drive and as much as I want to. Because these are treated as purely private decisions in the same way that how I worship or who I love is supposed to not be regulated because whatever I’m doing doesn’t stop you from doing what you want to do. But the problem with environmental decisions is that they do affect other people. They affect the public sphere, the public good, especially when you’re talking about pollution. If perhaps we could get more people to realize that you’re actually taking away the ability of other people to secure resources and enjoyment of certain rights to life and Liberty by making these decisions, then maybe more people might want to hold fossil fuel companies accountable for what their emissions are doing.”
No person or entity is more important than its ecosystem, no one gets out of their obligation to protect it.
Jerolmack calls this “the public-private paradox.” Rights of nature does away with that paradox entirely. And while there has been some pushback against it from right wing organizations, there’s a lot about rights of nature that sidesteps the right-left political divide, too, particularly the way it empowers local communities.
The beating heart of the U.S. rights of nature movement at the moment is not San Francisco or New York, Portland or Austin, it’s the Ohio rust belt. It began back in 2014 with the Toledo water crisis. For three straight days, Toledo residents couldn’t drink or even touch their water, thanks to a toxic algal bloom in Lake Erie, caused by agricultural runoff and the dumping of various chemicals in the lake.
Markie Miller had just left her environmental studies master’s program when her city’s water supply was deemed too toxic to drink. “I felt really disconnected from the environmental movement,” she said. ”Here’s five decades of environmental work that’s been done and things are getting worse.” She started to go to citizen-led meetings about what to do to solve the water crisis, and wound up at a lecture about rights of nature. It was just the sort of thing she’d been looking for. She and some of the other Toledo residents in the group asked the folks who had organized the lecture, from the Community Environmental Legal Defense Fund (CELDF), to go to a local bar and the Lake Erie Bill of Rights (LEBOR) was born on a cocktail napkin.
It gave Lake Erie the right to survive and flourish, and Toledo residents the right to protect the natural resources they depend upon. The Lake Erie Bill of Rights passed with 60 percent of the vote in February 2019. It included declarations like: “We the people of the city of Toledo find that laws ostensibly enacted to protect us and to foster our health, prosperity, and fundamental rights do neither. And that the very air, land, and water on which our lives and happiness depend are threatened. Thus, it has become necessary that we reaffirm and assert our inherent and inalienable rights and to extend legal rights to our natural environment in order to ensure that the natural world, along with our values, our interests and our rights are no longer subordinated to the accumulation of surplus wealth and unaccountable political power.”
Industrial agriculture and fossil fuel companies lobbied hard against the bill. Once it passed, Drews Farms, an industrial corn, soy, and alfalfa farm, filed a lawsuit alleging that LEBOR was unconstitutional. In February 2020 an Ohio district court judge agreed, saying the bill was unconstitutionally vague and represented an overreach of municipal power. The city of Toledo appealed, but ultimately dropped their appeal during the Covid-19 pandemic, citing budgetary constraints. Ohio politicians have gone on to pass legislation that would preempt further rights of nature laws in the state, but proponents of the idea are undeterred.
“Honestly, when you start seeing the preemption, it’s really validating in a weird way,” Miller said. “You realize that, well, we must be pissing off the right people.” According to Tish O’Dell, an organizer with CELDF in Ohio, who worked with Miller on the Lake Erie Bill of Rights, there are still various rights of nature efforts underway in the state, and across the country. “We all have two choices, right? When they pass a law, we either accept it and go, well, it’s the law. I guess there’s nothing we can do. Or you keep challenging it.”
No system is perfect, and rights of nature is no exception. It’s entirely possible that it will face increasing opposition in the U.S., for example, or that it will prove to be too big of a change. But it exists and is functioning in multiple parts of the world already and it at least does what few other proposed climate solutions have to date: provides a new decision-making framework that places more value on a livable climate than on the profits of a few industries.
That shift doesn’t have to come in the form of a new legal concept, though, it could come in any number of forms—a shift in the economy, for example. Austrian economist Christian Felber has proposed some ideas in this vein via books like Change Everything and Trading for Good, in which he espouses what he calls an “economy for the common good.”
“Maybe the common good is just the summarizing value of these other values, from respect to solidarity to cooperation to dignity to sustainability,” Felber said recently on the podcast Scene on Radio. “But the cultural value of the common good exists in all cultures. Maybe it doesn’t have the same name. It’s called buen vivir in Latin America, or ubuntu in Africa, or National Happiness in Bhutan. But there is no culture on this planet which does not know the lead value of the common good.”
It’s actually in the U.S. Constitution, too: “We the people, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare….” The “general welfare,” also known as the common good. And yet, Felber said Westerners in particular have “designed and constructed an economic system which is not promoting and strengthening these values, but on the contrary, undermining them, and propagating and implementing a different value system, which is absurd. Why do we strive for egoism and utility maximization and acting one against the other, thinking that competition is better than cooperation, and thinking that on a finite planet, endless growth is possible?”
Here, Felber hinted at another already-existent concept that provides a different decision-making framework: degrowth, an economic theory that suggests that we bring industrial processes in line with actual needs and finite resources. The most recent report from the Intergovernmental Panel on Climate Change embraced this idea as well. The report contained a new chapter, entitled “Demand, services and social aspects of mitigation.” Sounds kinda wonky and boring, but what it means is roughly: are people actually demanding fossil fuels, or even energy, or are they just demanding services? And that is a pretty revolutionary question.
“There are lots of myths about the way we understand the economy,” ecological economist Julia Steinberger, of the University of Lausanne (and a contributing author on the IPCC chapter) said. “One of the myths is that it’s demand driven when it’s not. It’s supply driven. So you can imagine that in phases of economies when everybody’s in poverty, then you know, there’s going to be a lot of demand that drives production. After a certain phase, basically you have an over productive industry that’s constantly driving productivity and competitiveness. And so at that point you start having overproduction and you need to find an outlet for that. Otherwise you get economic crises. And the outlet for that is various kinds of over-consumption or things like planned obsolescence. So it’s basically like production looking for outlets.”
This is what American sociologists Allan Schnaiberg, David Pellow, and Kenneth Gould termed the “treadmill of production” in their seminal 2008 book of the same name. “The fossil fuel industry is using this fake narrative of demand-driven production to excuse their activities,” Steinberger said. “But as soon as you look at demand, the story crumbles. Because all we need is services; that’s what there is demand for. We don’t need the energy use itself. So let’s think about how we deliver those services in a more efficient way.”
Underpinning this idea is a new type of economic model: the Decent Living Energy model, which was pioneered by Dr. Narasimha D. Rao and his team at Yale. It aims to quantify the energy needs and climate change impacts of eradicating poverty and providing decent living standards to all. Steinberger and her group at the University of Lausanne in Switzerland collaborated with the team at Yale to develop the first global Decent Living Energy model, which delivered another head-exploding result that made its way into the IPCC report: It’s possible to have decent living conditions for everybody in the world at half the current energy use.
Of course, we can’t wait for a shiny new framework within which to craft better climate solutions. But we also can’t ignore the need for that change indefinitely. Doing so condemns us all to living in the “This is fine” meme, drinking coffee as the world burns.
This story is generously supported by The Fine Fund.
