Climate Change and the Necessity of Civil Disobedience
If anyone should be punished severely it should be the oil and gas industry, not climate activists — even if the climate activists choose tactics that are harder for the public to understand and make people feel uncomfortable.
Mr. Donald Jose David Zepeda, an activist who has been arrested over 20 times for civil disobedience, faces a potential sentence of up to 10 years (Weil 2024) in a federal DC court tomorrow, on November 15, 2024.
Mr. Zepeda’s crime is throwing some red (well, unintentionally hot pink) paint powder on the glass box holding the Constitution of the United States at the National Archives Museum in Washington, D.C. on February 14, 2024 (Weil 2024). Most of the powder fell on himself and his co-protester (Weil 2024).
While being arrested, Zepeda is quoted as saying (Weil 2024), “We don’t want to see our children have to live through the end of civilization, but that’s the path we’re going down. We need to declare a climate emergency, President Biden. Please declare a climate emergency. America, please declare a climate emergency.”
The personal and financial costs that protesters have paid for using similar tactics have been extreme and there has not been a whole lot of sympathy from the public (Cox, 2024). Dr. Colleen Shogan at the National Archives reduced the identity of the protesters to “vandals” and declared that she hoped for a long sentence. She had observed that this action was an event that made people feel afraid and angry. Initially, people wondered if the powder was either ricin or anthrax, and then their attention shifted to whether the paint would stain the marble and damage the constitution. Incidentally, the powder was able to penetrate into the first layer of protection of the constitution. Dr. Shogan argued that this event did not raise attention to the concerns of climate change and instead was self-centered and short-sighted behavior.
Whether the specific tactics of civil disobedience are effective at raising awareness of climate action is certainly an important question, but whether anything is more effective is equally important. These actions should be understood as a desperate attempt to fight the hegemony of the oil and gas industry. Climate change is a matter of systemic violence, where any actions taken by the government are far too incremental and subject to the meddling of the very entrenched oil and gas interests. It is hard to imagine how there is a reasonable legal alternative that would meaningfully change the situation, given the hegemony of the fossil fuel industry.
Climate change is harming human health today and these impacts will become more frequent, severe, and persistent along with the unrelenting expansion of oil and gas production. Climate change has damaged ecosystems and contributed to the biodiversity crisis that threatens human life. Climate activists have engaged in actions to advocate for legislative actions, but countries such as the United States have continued to expand fossil fuel production activities, increasing greenhouse gas emissions and global temperatures. In a 2021 survey, a majority of young people reported that the lack of governmental action to slow climate change made them feel powerless and betrayed by their government (Hickman et al. 2021).
Worsening Climate Change Harms Health
By the end of the century, climate change could be devastating for human societies (Rising et al. 2022), as average global temperatures are projected to rise by 3.2°C (Intergovernmental Panel on Climate Change [IPCC] 2023), far above the Paris Agreement made in 2015 to limit warming well-below 2°C, ideally 1.5°C (United Nations, n.d.). Differences between 1.5°C and 2°C are significant, with more heat extremes, drought, water stress, extreme rain, coastal flooding, wildfires, food insecurity, vector borne diseases, biodiversity loss, ocean acidification, and economic impacts in a 2°C vs a 1.5°C world (IPCC 2018). Moreover, an estimated 153 million fewer people would die due to air pollution alone in a 1.5°C vs 2°C world (Shindell et al. 2018). By June of 2024, global warming exceeded the 1.5°C threshold for 12 consecutive months (Copernicus Services and European Centre for Medium-Range Weather Forecasts 2024), suggesting we are really not on track to save human lives.
Insufficient policies to reduce the consumption of fossil fuels has resulted in unprecedented incidence and intensity of disasters globally. The United States alone has experienced 24 confirmed billion-dollar weather/climate disaster events in 2024, as of November 10th (NOAA National Centers for Environmental Information 2024). This far exceeds the average number of billion-dollar disasters (Consumer Price Index [CPI] adjusted) of 8.1 between 1980 and 2022, and even the prior five-year average (2018–2022) of 18.0 (CPI adjusted) (NOAA National Centers for Environmental Information 2024). These estimates are conservative and do not include the cost of extreme heat events that are not included within the FEMA definition of major disaster qualifying events.
Not only does the burning of fossil fuels result in climate change, the production, transmission, transportation and combustion of fossil fuels damage ecosystems and pollute both air and water, harming human health. Excess deaths due to fine particulate matter and ozone air pollution are estimated at 8.34 million deaths per year. Of these, an estimated 5.13 million deaths are attributed to air pollution from fossil fuels and are avoidable (Lelieveld et al. 2023).
Climate change is a result of structural injustice, and structural injustice magnifies the impacts of climate change. Racism, colonialism, imperialism, capitalism, and anthropocentrism are root causes of the climate crisis, with inequitable distribution of power lying at its core (Joseph-Salisbury, Johnson, and Kamunge, n.d.). The production of fossil fuels relies on sacrifice zones where the negative externalities of water and air pollution are primarily born by minoritized communities (Donaghy 2023). The climate crisis has been called a “perfect moral storm,” including the spatial and temporal dispersion of causes and effects, fragmentation of agency, and institutional inadequacy and lack of effective global governance (Gardiner 2006). Populations who have contributed the least to the climate problem are often those who suffer the most (Auckland et al. 2022). Those who have the most disadvantages are often more susceptible to fossil-fueled climate disasters, in part because they have fewer financial and institutional resources and power to protect themselves and recover from climate risks (Thomas et al. 2019).
Climate Change is Perpetuated by the Hegemony of the Fossil Fuel Industry
It is important to contextualize Mr. Zepeda’s actions within the structural violence of climate change and hegemony of the fossil fuel industry.
In an earlier trial for trying to shut down a Kinder Morgan pipeline, Mr. Zepeda’s lawyers used the necessity defense, which requires that:
1) “The defendant reasonably believed the commission of the crime was necessary to avoid or minimize harm; and
2) Harm sought to be avoided was greater than the harm resulting from a violation of the law; and
3) The threatened harm was not brought about by the defendant; and
4) No reasonable legal alternative existed.”
The jury found that although Mr. Zepeda satisfied the first three conditions, he did not satisfy the fourth involving legal alternatives (Weil 2024).
While campaigning, Donald Trump promised the fossil fuel lobby that he would scrap environmental rules for the price of $1 billion dollars, and ultimately received $14.1 million for his presidential campaign by August 31 (Milman 2024). President-elect Tump has already announced his plans to withdraw the United States from the Paris Agreement. Although Donald Trump has promised to “drill, baby drill”, oil and gas production has never been higher than under the Biden administration. Democrats could have declared a climate emergency, removed oil and gas subsidies, banned fracking, ceased oil and gas production on public lands, and become a leader in renewable energy. Instead, the Inflation Reduction Act — a landmark “climate legislation” — while incentivizing green energy production, did not actually reduce oil and gas production (supply), and provided billions of dollars in tax subsidies to the fossil fuel industry for unverified carbon capture and sequestration (Westervelt, 2024). Furthermore, the Democratic presidential candidate Kamala Harris backed off her earlier promise to ban fracking and declared in the debate that she could both address the climate crisis and continue to extract oil and gas, goals that are completely at odds with each other.
It is extremely unlikely that existing institutions in the United States are sufficient for facilitating the process of decarbonizing the economy (Yeargain 2021). Though federal agencies, such as the Environmental Protection Agency could theoretically address these problems (Yeargain 2021), there are numerous legal headwinds with multiple challenges to its ability to regulate winding their way through the Supreme Court (Howe 2024). Permissive eminent domain rules that allow private companies to seize lands for the purposes of primarily oil and gas development, providing them with significant profits (Yeargain 2021). Lax eminent domain laws are one the most important ways that the fossil fuel industry can enforce its hegemony (Yeargain 2021). There are recent examples of oil and gas industry forcing landowners to give up their land for dangerous and deadly carbon dioxide pipelines through eminent domain (Cramer, Wanamaker, and Gerlock 2024). The fossil fuel industry benefits extensively from tax laws that exempt them from property taxes, or altering how the value of property was assessed, or adopting special rules that required that extractive industries are taxed at a lower rate (Yeargain 2021). Many states have constitutions that have set aside state land for public education, so that profits from the land can be used to fund education. However, this has resulted in lands being used for billions of dollars in oil and gas production (Yeargain 2021).
The United States provides roughly $20 billion dollars in direct subsidies to the fossil fuel industry (Environmental and Energy Study Institute 2019). Despite calls to phase out fossil fuel subsidies, neither the US or the European Union have actually done so. Instead, they are only increasing. Global fossil fuel subsidies reached a record $7 trillion dollars in 2022, including both explicit and implicit subsides that involve undercharging for supplies or undercharging for environmental costs and local air pollution (International Monetary Fund, n.d.).
The fossil fuel industry deeply resists decarbonization and uses its profits to delay the mitigation of climate change, including corporate lobbying and political spending, such as campaign contributions (Lantushenko and Schellhorn 2023). The fossil fuel industry has even used the institutions of higher education to promote climate obstruction (Hiltner et al. 2024). One recent example is that BP is the sole funder of the Princeton University’s Climate Mitigation Initiative (CMI) (Hiltner et al. 2024). The CMI provided advice to BP to position carbon capture and sequestration as a necessary part of the clean energy transition (Issues Management Working Group 2022). Research by CMI was cited in letters from the fossil fuel industry to the Office of Management in Budget to urge the passing of carbon dioxide pipeline safety rules, rules that have been fought by landowners and non-profits as they are considered woefully insufficient.
Furthermore, the fossil fuel industry use their extensive profits to deceive the public about the harms of their product (Maani et al. 2022). It is a matter of settled law that the fossil fuel industry has defrauded the public by politicizing climate change and seeding doubt, and making trillions of dollars as a result (Henricksen 2023). The law has so far failed to stop this fraud because it is written to address one-on-one episodes of fraud and not efforts to deceive the greater public (Henricksen 2023). Furthermore, the First Amendment is interpreted in such a way that it protects those who are spreading fraudulent information (Henricksen 2023).
The fossil fuel industry has recently shifted from outright denying climate change engaging to more subtle forms of denial, such as positioning themselves as part of the technological solution (Megura and Gunderson 2022). After a flurry of announcements of commitments to reducing greenhouse gas emissions, the fossil fuel industry quietly retracted them (Yoder 2023).
The fossil fuel industry is certainly not one to voluntarily cease its harms, and the United States government is clearly not up to task of making them.
Existing institutions are recalcitrant in reigning in and helping phase out fossil fuels — instead fostering the social, legal, and political conditions that have already resulted in extremely dangerous climate change. The reaction by the legal and regulatory system to climate activism has been to quiet resistance to the fossil fuel industry on the part of interested civil society.
If anyone should be punished severely it should be the oil and gas industry, not climate activists — even if the climate activists choose tactics that are harder for the public to understand and make people feel uncomfortable.
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