Extinction on My Mind /3:
Litigation in Pre-Extinction Times

Lawsuits are not about action, lawsuits are about delay

By Randi Hacker

August 15, 2024

Right after the Supreme Court ruling on presidential immunity, I asked WestmountMag to pull an essay I had written about litigation and extinction because the timing made me uncomfortable. We published one about women and machines instead. Perhaps you read it.

However, now that many of the cases against convicted felon Donald Trump seem reinvigorated — Judge Chutkan is moving forward on the election interference case; Jack Smith is appealing Judge Cannon’s decision; Judge Merchan has not rescinded the gag order — and Trump himself is suing the US Department of Justice for raiding Mar-a-Lago to retrieve top secret documents he had stolen, hidden, and shown to an Australian billionaire, the timing seems just right.

Not too long ago, the Vermont governor allowed to become law without his signature the Climate Superfund Act, giving the green light to the Green Mountain State to go ahead and sue Big Oil for the damage climate change has done to the state because climate change is their fault. He thinks the money would be better spent elsewhere.

They [lawsuits] are about appeal after appeal after appeal, and even after that, there’s no guarantee a case will get to trial.

I take no issue with holding Big Oil responsible for their part in the climate crisis, but in a rare moment of agreement with Phil Scott, I, too, think that the money would be better spent elsewhere. Because, when you get right down to it, lawsuits are not about action; lawsuits are about delay. They are about appeal after appeal after appeal, and even after that, there’s no guarantee a case will get to trial.

Take Juliana vs. the United States, for example. In 2015, Our Children’s Trust, an Oregon nonprofit, filed a lawsuit on behalf of twenty-one people under the age of twenty-one, arguing that, by not doing anything to curb carbon emissions and, in fact, continuing to invest in their extraction and transport, the US government has “violated [the young people’s] rights under the Fifth and Ninth Amendments to the US Constitution, as well as the Public Trust Doctrine.” The case has advanced through various appeals and denials and complaint amendments and courts, including the Supreme Court of the United States, and has not yet gotten to trial. It’s been eight years. Eight years in which nothing of any substance has been done to address the issue at the very core of the complaint. And now it appears that the case may be dismissed for good.

And even when climate activists win, they lose. Take Verein KlimaSeniorinnen Schweiz and Others vs. Switzerland, for example, whose lawsuit argues that the Swiss government’s failure to address climate change is in violation of Article 8, namely, the right to respect a citizen’s family and private life. After some dicking around about who is even allowed to bring such a lawsuit, the European Court of Human Rights found in favour of the plaintiffs and ordered the Swiss government to act while acknowledging that “[m]easures designed to combat climate change and its adverse effects require legislative action” and that “such action” depends on “democratic decision-making” and that the remit of the court is “complementary to those democratic processes,” and by “complementary to,” I think they mean, “mostly powerless to affect.” Maybe I’m wrong.

‘… the recent incomprehensible decision by the US Supreme Court… puts judges rather than federal agencies that are staffed by experts in a particular field in charge of making decisions on regulation compliance…’

In Montana, sixteen young plaintiffs sued the state for violating their constitutional right to a clean and healthful environment by permitting fossil fuel development with no regard for its effect on the climate. The judge ruled in their favour and ordered new policies with stricter evaluation criteria but left it up to the state legislature to decide when to implement these new policies. Oh, and the state has already entered an appeal. Show of hands if you’re surprised.

Furthermore, the recent incomprehensible decision by the US Supreme Court – no, not that one; this one – that puts judges rather than federal agencies that are staffed by experts in a particular field in charge of making decisions on regulation compliance, well, that’s not going to help, is it?

And the lawsuits just keep on coming. According to Inside Climate News, plastic-related lawsuits are piling up. The Our Children’s Trust website says it has taken on a liquid natural gas case for youth in Alaska, and, in Texas, private landowners are suing Chevron for failing to adequately plug abandoned oil wells. In fact, there’s even a Climate Change Database.

The point is that bringing a lawsuit is a lot like liking something on social media: there’s that adrenaline rush that fuels a euphoric delusion that we’ve done something. And then we continue to drill, and frack, and mine, and make movies with high-speed car chases and television shows with characters who flush their drugs down the toilet. We still release balloons into the air. We still set off fireworks. We still make panty liners and headlight eyelashes for VW beetles and pickleballs and dentures and electric bicycles and bouncy castles and dialysis machines and Tyvek house wrap and whitener for our teeth and plug-in air freshener and microwave ovens and SPF 50 sun hats and permethrin-infused hiking pants….

Humans are the only species that has to sue itself to get itself to protect itself from itself.

In other words, as it works its way through the courts, every lawsuit we bring to get ourselves to stop doing something destructive buys us time — gives us permission, you might even say — to continue to live exactly as we have been living, that is, complicit in our own extinction.

Humans are the only species that has to sue itself to get itself to protect itself from itself.

So, what’s a good way to live in these pre-extinction times? My sister, who is on board with human extinction but is rooting for an asteroid, texted this to me:

I think a lot about the practices I’ve incorporated over a lifetime with the planet in mind. I’m now rethinking the decisions I’ve taken for granted for so long (like not being wasteful and recycling). I now also see that if I curtail my vigilance, I’m possibly speeding up our demise, which I’m, ideally, not against.

So far, I almost always still opt to save the planet (although it could be argued that the faster humans die, the faster the planet will be saved) because I want to die knowing I was only a small part of the problem.

Do you ever consider this?

Why, yes, yes, I do. I don’t know what happens after extinction, but it certainly can’t hurt to head into it with lighter karma.

And if you disagree, you can sue me.

Feature image: StockPholio

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Randi Hacker has been a writer and editor since the 20th century, and she’s been writing about the environment for more than thirty years, mostly to empower young people to take agency in their future. Satirical essays written with a partner appeared in the New York Times Book Review, Punch and Spy, among other publications. Her YA novel, Life As I Knew It, (Simon & Schuster) was named one of the Books for the Teen Age by the NY Public Library, and her TV show, Windy Acres, written with Jay Craven, was nominated for a New England Emmy for Writing. She just retired from her position as the resolutions copy editor for the State of Vermont, a job that has forever damaged her relationship with the comma. randihacker.com