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Climate change on trial

November 21, 2014 by Nicandro Iannacci


640px-Harvard_square_harvard_yardA group of Harvard University students is turning to the courts to force an end to the school’s investments in gas, oil and coal companies. The lawsuit, announced on Thursday, is the latest battle in the ongoing campaign for divestment on many college campuses.

The seven plaintiffs, organized as the Harvard Climate Justice Coalition, are comprised of a mix of undergraduate and graduate students. They are bringing the suit on behalf of future generations of students as well.

“Climate change has arrived, wrecking the planet and posing serious dangers to the most vulnerable among us,” the Coalition explains on its website. “Unless and until institutions like Harvard act to address the root causes of global warming, we will remain addicted to a system of energy production and economic injustice that guarantees catastrophe. Our university has a legal obligation—and, more importantly, a moral duty—to stop profiting from human suffering and environmental destruction.”

Citing Massachusetts case law, the students claim that the Harvard Corporation, the nonprofit governing board of the university, is guilty of “mismanagement of charitable funds” and “intentional investment in abnormally dangerous activities.”

The official complaint quotes the school’s 1650 charter, which outlines a responsibility to promote “the advancement and education of youth.” It also quotes Harvard President Drew Gilpin Faust, who has publicly acknowledged the university’s “special obligation and accountability to the future, to the long view needed to anticipate and alter the trajectory and impact of climate change.”

And in bringing the suit on behalf of future generations, the plaintiffs turn to the Preamble of the U.S. Constitution. Enshrined in the document, they argue, is a shared interest in “promot[ing] the general welfare … and secur[ing] the Blessings of Liberty to ourselves and our Posterity.”

For its part, Harvard has said little on the matter so far. “We expect that a court will need to consider the legal basis of their complaint,” a spokesman told the New York Times, adding, “We agree that threat must be confronted, but sometimes differ on the means.”

That difference between students and administrators has been well exposed in recent months by a series of campaigns and protests that included a blockade of Massachusetts Hall, home to the office of the President and other top administrators, and a public confrontation with President Faust herself.

The broader campus divestment movement against fossil fuels began two years ago at Swarthmore College, a liberal arts college near Philadelphia. Activists are hoping they can replicate the success of divestment campaigns in the 1980s and 1990s against apartheid in South Africa and the tobacco industry, even if the current movement has only convinced fewer than 20 schools to act.

With the new lawsuit, the Harvard plaintiffs are also contributing to a growing wave of legal action against climate change.

Such litigation can take a range of forms, from compelling government action to blocking government action to regulating private conduct. Every constituency, from fossil fuel companies and environmental activists to U.S. states and the federal government, has found their way to court on this issue.

Admittedly, climate change lawsuits have faltered in the previous decade. For example, a case in which an Alaskan island town sued 24 fossil fuel companies for relocation costs due to shore erosion was dismissed by the U.S. Court of Appeals for the Ninth Circuit in 2012 and unceremoniously denied review by the Supreme Court in 2013.

Another case, in which a group of Mississippi plaintiffs tried to hold various fossil fuel companies accountable for the strength and fury of Hurricane Katrina, was dismissed in 2011 by the U.S. Court of Appeals for the Fifth Circuit, only to be dismissed again in 2013 by a panel of the same court.

And in 2011, the Supreme Court unanimously ruled against a group of eight states that sought to limit carbon emissions from power plants by claiming that the emissions contribute to climate change.

Still, the Harvard lawsuit is of a different caste, seeking change from within. Its groundbreaking arguments may yet clear a new path for climate law.

Nicandro Iannacci is a web strategist at the National Constitution Center.

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