(Painting credit Robert Shetterly, Americans Who Tell the Truth). Tim’s act of personal sacrifice came after abundant failures to pass comprehensive climate legislation in this country and after failure of international efforts to secure a legally binding cap on carbon emissions. The climate change policies that Tim is calling for threaten to upset the delicate balance of the U.S. and global economies to better reflect principles of equity, justice, and environmental stewardship. But the outcome of the legal decision implicating him suggests a two-tiered legal system, one for the powerful and one for the poor. How, then, can we use Tim’s example to help us better understand how the justice system both helps and hinders movements for justice in this country, especially on issues like climate change that have implications for justice far and wide?

Join a conversation hosted by Orion magazine on Tuesday, February 21, at 7 p.m. Eastern / 4 p.m. Pacific, with Heidi Boghosian, executive director of the National Lawyers Guild, and Patrick Shea, attorney for Tim DeChristopher. Orion published Terry Tempest Williams’s interview of Tim DeChristopher, “What Love Looks Like,” in its January/February 2012 issue.

I’ve spent my snow day in Seattle watching a panel from the conference called, “The Nature of Movement: What Does the Evidence Tell Us?” Notably, Jon Barnett describes that mobility—or, the movement of people—is a normal social process for people in the Pacific. People in the Pacific move around a lot, he says, to receive an education, for work, training, and for money. He argues that mobility may help enable adaptation responses that enhance local livelihoods, but only if people control their movement and exert power and influence over essential planning processes that ensure better livelihoods, such as education, job training, healthcare, etc.. He describes migration as one-way movement, which isn’t an accurate portrayal of how people actually live their lives and respond to crisis in the Pacific. Then Dr. Maryanne Loughry described the history of resettlement in the Carteret Islands, which is undergoing its third attempt at resettlement in over 50 years.

After watching the recording of the panel, I am struck by the following thought. Generally speaking, according to evidence Jon Barnett provided, people in the Pacific Islands move all the time. But people in Alaska Native Villages don’t. They stay. Perhaps because these villages are very remote and travel to and from the villages is very difficult. I wonder if the mobility v. migration distinction is key for understanding the similarities and differences between resettlement in the Asia-Pacific and in Alaska Native Villages? In Alaska, mobility doesn’t seem to be as normal of a cultural force as it is in the Asia-Pacific Islands, at least if you examine trends over the last 100 years or so.

In Kivalina, for example, villagers traditionally lived nomadically, moving seasonally to different hunting grounds. They  only settled permanently after the U.S. federal government’s Bureau of Indian Affairs built a school in Kivalina in 1905 after seeing people camped on the reef and mistaking the temporary hunting camp for a village. (According to the City of Kivalina’s website, the BIA told people they would be jailed if they didn’t send their children to school.) So the people were forced to stay in Kivalina and make it a permanent home after the school was built. As former tribal administrator of Kivalina Colleen Swan has put it, you cannot put a school on a sled and move it. So they stayed. Now, because of climate change, the village must move. And it’s very unlikely they will go back once they move, other than for use of traditional and customary uses of the land when the weather allows it.

So local infrastructure built by the BIA created a disincentive for mobility in Kivalina almost 100 years ago. For the people of Kivalina, I’m wondering if resettlement is not about mobility (something normal that happens all the time, as suggested applies to people in the Pacific) and more like migration, which is more of a one-way affair. Although a lot more research would be needed to support this idea, I see at least initially that the consequences of migration—as may be the case in Alaska—as opposed to mobility are much more profound.

I’d highly recommend listening to the presentations in the following video, which do much to clarify the distinction between migration and mobility. Speakers for the session are Professor Richard Bedford, Professor Jon Barnett, and Dr. Maryanne Loughry. Our sincere appreciation to Dr. Jane McAdam for her leadership on issues surrounding climate-induced displacement and for organizing such an important conference.

(Source: World Meteorological Organization.) Later that night, David explained: “So a lot of what you see in the first 50 years of [the above plot] is natural variability. From 1900 to 2000, however, co2 started increasing in a really big way. This [increase] is responsible for much of the trend of the 20th century. Note there is a little extra warming in the 1950s and a stall in the 1960–1970s. This could be natural variability (for example, a warm period in the 1950s and a cold period in the 1960s), or it could be increasing aerosols—it is impossible to say for sure. But the overall temperature increase of 0.85C from 1900 to 2000 cannot be explained without increasing CO2. Turning it around, IF you increase CO2 by the observed amount and take into account aerosol changes, you get a temperature trend that is consistent with that observed.”

“Do not lose sight of the fact that the observed temperature trend over the past century is consistent with what the models say, and [the temperature increase] is much smaller than what the models say will happen this century, even if you take the wimpiest climate model and the most unrealistically low emission profiles,” he said.

Although the science of climate change is absolutely the starting point for debate, it’s only a starting point. All four scientists on the panel agreed that climate change is happening, even though they disputed the cause and the pace of trends. Where scientists do not have expertise is in deciding what to do about it, said Dr. Kelly.

Borrowing from Stephen Scheinder, the opportunity cost of ignoring climate change may be akin to a patient who finds a tumor on his lung but waits for it to grow big enough to support conclusive evidence that it’s cancer before having surgery to remove it.

At heart, making decisions about climate change comes down to value judgments: How do we value our lives? Other people? The planet? The future? On Friday, Jeni and I continued the conversation in this vein. We ran a 3.5-hour workshop titled: ‘Climate change and Social and Economic Justice moderated by Linda Kruger of the U.S. Forest Service PNW Station. The purpose of our session was two-fold: First, we provided participants with an overview of climate justice, the human story behind the climate crisis. We shared our 5-part framework for climate justice and spoke about existing and innovative legal and policy structures for providing remedies for climate-induced harms. Second, we facilitated a scenario-thinking workshop to help participants imagine and rehearse responses to life in Juneau in 2040 based on predicted future warming trends.

By the end of our session together, participants experienced an abbreviated scenario planning exercise for their own community in Juneau. Tools for future thinking, such as scenario planning, are incredibly important for inspiring change that resonates and incorporates a community’s future vision for itself.

As Terry Chapin put it during the opening session, the past is no prologue: “We can’t go back. The best reference state is future projections…. The worst that can happen is that we will be better prepared for the extreme events that will eventually occur.”

The challenge for communities, of course, is to come up with a vision for the future. What process should a community follow to create it? Whose vision is it, exactly? What if the vision requires a long time to fulfill and its basic tenets change over time? What if consensus leads to the vision with the lowest common denominator? (A participant mentioned to me after our session that several years ago Juneau conducted a scenario planning exercise around issues relating to tourism, where common ground was not aspirational at all but “what can you live with?”) Who’s responsible for representing the community’s vision? How does that person represent it honestly given his or her own desired outcomes? These issues are timeless and won’t go away. In fact, climate change will likely exacerbate them.

If scenario thinking has a role to play in assisting communities faced with a warmer future, its value isn’t in predicting the future or in finding new fixes to generation-old struggles within a community. Or is it? The tool isn’t enough, perhaps. But the challenge is that climate change changes everything, and old ways of seeing problems and of working them out may no longer be relevant or even helpful. Scenario thinking’s most promising features include its ability to gather people in one room who wouldn’t otherwise engage with each other, and to paint a vivid picture of multiple plausible futures that communities can rehearse now.

The focal question that we asked our Juneau participants to consider was this: Taking global average IPCC climate predictions for 2040 as a given, what can Juneau do to protect and improve the lives of people living here over the next 3 decades? General characteristics of life in Juneau in 2040 may include an approximate 2.5 degree Celsius rise in temperature. This may translate into: warmer and wetter conditions, particularly in fall and winter; warming ocean temperatures affecting the southeast Alaska fisheries; changing hydrological cycles including surface water flooding in winter (due to increased run-off) and less spring run-off—affecting human water sources, the road infrastructure, hydropower, and salmon; impacts on transportation that render supply shipments less reliable; local or global species extinction if climate changes outpace the ability for species to adapt; continued retreat of the Juneau Icefield; and economic costs of responses to climate impacts likely increasing over time. (Sources: Alaska Regional Climate Projections, Scenarios Network for Alaska Planning (January, 2010) and Climate Change: Predicted Impacts on Juneau (April, 2007).

We next asked people to brainstorm drivers of social change in the Juneau community. We solicited responses to changes in five broad categories (realizing that most of the drivers cut across issue-areas): social, technological, environmental, political, environmental, and economic. Here’s how people responded (click on the image to enlarge):

The circled responses distinguish key uncertainties from predetermined forces of change. Key uncertainties are the most highly uncertain to occur and will have the most impact on the community. Once the group identified and circled key uncertainties, they individually voted for the top key uncertainty affecting Juneau in 2040 the most. After voting, we tallied responses, and plotted the two top uncertainties along the x and y axes of a matrix grid. This grid would define four plausible futures for Juneau in 2040 (again, for the purposes of the exercise, taking a 2.5 degrees C temperature increase as a given). The top two uncertainties the group identified were: 1) political vision and 2) forest health.

Two extremes arose from the exercise. First, under the Green Brain scenario, Juneau became a world leader in enlightened forestry, winning a version of the Nobel Prize for its pioneering work in celebrating, protecting, and championing its model forests as learning laboratories. Competitions awarded prizes for innovation, and the world’s leaders came for tours. The university launched a forest resources innovation center, attracting experts from all over the world. The people of the town even helped pay for the center because it was a source of pride and importance for the community.

At the other end of the spectrum, under the Treeless in Juneau (a pun on Sleepless in Seattle) scenario, forestland was auctioned off to the highest bidder, and young people did not return home. Culturally the community fell apart under apathetic political leadership that ignored Juneau’s fundamental connection to the surrounding landscape—the true source of wealth and connection powering peoples’ lives. The community lost out—disempowered and insecure about its future.

At the end of the session, the value of rehearsing the future felt futile to some who found the local community powerless to respond to global change. Others valued the educational process of learning about climate impacts at a local level and contributing their input. Others enjoyed the simplification scenario thinking offers to a complex set of issues. Yet others noted the challenge of planning for climate futures while simultaneously acknowledging our society’s relative comfort level with thirty-year plans, a 30-year mortgage as the classic example. Many commented on who was in the room (or more precisely, who wasn’t): most of the 40 participants were retired; few young people engaged in issues about the community’s future. The aging population seemed one of Juneau’s best assets and one of its weakest links.

• Atmosphere: In 2011, the average annual near-surface air temperatures over much of the Arctic Ocean were approximately 2.5° F (1.5° C) greater than the 1981-2010 baseline period.

• Sea ice: Minimum Arctic sea ice area in September 2011 was the second lowest recorded by satellite since 1979.
• Ocean: Arctic Ocean temperature and salinity may be stabilizing after a period of warming and freshening. Acidification of sea water (“ocean acidification”) as a result of carbon dioxide absorption has also been documented in the Beaufort and Chukchi seas.
• Land: Arctic tundra vegetation continues to increase and is associated with higher air temperatures over most of the Arctic land mass.

The Kivalina plaintiffs are seeking compensation for climate change–related damages, including the potential $400 million cost to relocate the village away from melting permafrost and eroding coastlines. The plaintiffs argue that dangerous levels of greenhouse gases emitted by the defendants—24 oil, gas, and coal companies—arise to a nuisance under federal common law.[2] Plaintiffs also argue that a handful of the defendants are engaging in conspiracy to promote false scientific debate on climate change.[3] The Northern District of California dismissed the case on standing and political question grounds.[4] The case is now in the hands of the Ninth Circuit. The Native Village of Kivalina awaits a decision on whether it will win its day in court, which could take up to one year. Thirty other villages await similar fates unless coordinated efforts are made to tackle climate change–related relocation more systemically. Six villages, including Kivalina, must relocate within the next 10 years according to the U.S. Army Corps of Engineers.[5] (Photo is of leaders from Kivalina, who traveled to San Francisco to hear oral argument, and their lawyers, in front of the courthouse. For more, visit the Center for Race, Poverty, and the Environment‘s website.)

The Kivalina case is unprecedented. Some might call it a long shot. It’s unclear how many other Alaska Native Villages will vote to litigate for relocation damages. During oral argument before the Ninth Circuit, Judge Clifton asked why there are not more cases like this one? The legal bandwidth for cases seeking recognition of climate change harms has been expanding slowly since the Supreme Court decided Massachusetts v. EPA[6] and American Electric Power v. Connecticut[7] but not enough to include compensating injured plaintiffs for damages—the issue at the heart of climate change. Given the shaky ground (federal common law) upon which its case sits, Kivalina villagers are looking beyond litigation to other adaptation measures, including government-to-government consultations with federal agencies coordinating relocation efforts.

Governmental obstacles to relocation is the topic of our paper titled “Initial Assessment of Lead Agency Candidates to Support Alaska Native Villages Requiring Relocation to Survive Climate Harms.”

A caution must be given to readers of our paper that it does not include primary source information from Alaska Native villagers faced with relocation. Rather it is a literature review that widely consults agency documents and authorities with respect to relocation delegated by Congress. It must be made clear that the contents of this paper do not represent the views of impacted communities. Thus, this approach to the issue is limited and demands fuller treatment.

If a lead agency is authorized to fund, coordinate, and manage relocation of Alaska Native Villages rendered uninhabitable by climate change, another danger exists. This danger tests the article’s main argument that it is critical to the ultimate success and coordination of relocation efforts of Alaska Native Villages that a federal agency be assigned lead authority. A federal lead agency may backfire, stripping the villages of their decision making power, which could be more harmful and destructive to the future of the villages than the climate impacts themselves. Environmental justice attorney, Luke Cole, perhaps best articulated this issue decades back (it’s not a new problem). Luke was the founder of the Center for Race Poverty and the Environment and he was the lead attorney on the Kivalina case before his tragic death in 2009. He wrote:

“The law is dangerous to social movements because it is a cocooning and self-referential game in which its players believe they are important simply because they are playing…. In a very real way, the legal groups are re-creating one of the roots of environmental injustice: the making of decisions by people not affected by those decisions.[8]“

Laws and policies promoting and supporting federal agency involvement are critical to a systemic approach to climate-induced relocation. But a legal and policy approach to climate adaptation will surely fail if the end result is that federal agency involvement—either intentionally or more likely de facto—regulates people out of existence. At the Alaska Forum on the Environment in Anchorage last February, Ida Hildebrand voiced her concern that Arctic peoples are “being regulated out of our cultures. Our fish. Our waters. Our land.” Climate change must not emerge as another excuse for colonialism and conflict.

Our paper is but one of many guideposts on the path toward the long view of climate adaptation. It clarifies the need for forward-thinking relocation planning in response to slow-onset, creeping environmental changes such as coastal erosion and permafrost melt in addition to sudden-onset events exemplified by the recent storm surge. Relocation frameworks must protect and prioritize community decision-making, respect fundamental human rights,[9] and timely serve communities by promoting and protecting the root of their spirit and their power so that they may remain rich with knowledge, culture, and relationships.

Based on the analysis, this report makes the case for the following agencies to undergo further evaluation for the role of lead agency: (1) U.S. Army Corps of Engineers; (2) Denali Commission; (3) U.S. Department of Commerce Economic Development Agency; (4) Federal Emergency Management Agency; and (5) U.S. Environmental Protection Agency.

Although this recommendation is based on a preliminary analysis that does not include critical input from key villages and agencies, or the possibility of significant restructuring of individual agencies, this report aims to further the recommendations of the 2009 GAO report that Congress “may want to consider designating, or creating, a lead federal entity that could work in conjunction with the lead state agency to coordinate and oversee village relocation efforts.” While further analysis and interviews with affected communities is necessary to make final agency recommendation determinations, the need for new legislation granting authority and appropriations for an agency to take leadership of the Alaska Native village relocation efforts is immediate, clear, and dire.

The student authors are: Sara Bender, Oceanography; Dean Chahim, Civil & Environmental Engineering; Laura Eshbach, LL.M Candidate; Lyndsay Lee Gordon, Environmental Science and Resource Management; Fred Kaplan, LL.M Candidate; Kelly McCusker, Atmospheric Sciences; Hilary Palevsky, Oceanography; and Maura Rowell, Civil & Environmental Engineering and Math.

Instructors who helped advise the project include: David Battisti, Takami Endowed Chair, UW Atmospheric Sciences; Jeni Barcelos, J.D., Executive Director, Three Degrees Project, UW Law; Jennifer Marlow, J.D., Executive Director, Three Degrees Project, UW Law, and Teaching Fellows: Erin Burke, Atmospheric Sciences, and Shailee Stzern, Civil Engineering and Public Policy.

The issues Robin raises about Newtok in her article are the same facing Kivalina. The Native Village of Kivalina can only survive if it moves. Villagers voted to move the community years ago but still remain in place. Villagers have run into constant roadblocks, including the real environmental risk of permafrost melt at the new site selected but also unnecessary and imprudent restrictions on the use of government funds under current disaster law. Political and legal barriers are hampering Kivalina’s (and other villages such as Newtok’s) decisions to move, even though the US government has acknowledged that climate change risks their permanent inhabitability.

The issue comes down to funding. Litigation is one avenue for compensation. But there must also be financing mechanisms made available to communities where climate change makes relocation necessary for survival. Elizabeth Ferris of the Brookings Institute, recently raised this concern at the Conference on Climate Change and Migration in the Asia-Pacific: Legal and Policy Responses in Sydney. Distinguishing planned resettlements in the climate change context from development-induced resettlement, she said:

“I worry about the money. When the World Bank or the development banks are financing these [development-induced repsettlement] projects, [the banks] build in the cost of resettlement into the project plans. Who’s going to pay for this? Who’s going to pay for those studies, and the surveys, and the hundreds of community meetings to make decisions that are owned by a community if you don’t have the carrot, if you will, of international financing?” (Read her full treatment on the issue of planned relocations here.)

Dr. Ferris’s concerns are real. In a world abundant with money and resources, the value of a community’s survival must not be met with empty pockets.

Prof. Jon Eddy spoke of when “the law” as seen through western eyes can be a danger to development in Afghanistan. Multiple legal systems in Afghanistan exist that must be clarified, negotiated, and navigated. Jeni and I stressed the importance of law in securing climate policy at the local level that protects human rights. In most instances, these “climate” policies don’t look like climate policy at all. A classic example is changing the dates of the hunting season to align better with changing migration patterns of Arctic caribou so that Arctic people can better adapt themselves to changing conditions rendered by climate change.

November 4–6, Jeni and I traveled to the David Brower Center to attend the Women’s Earth Alliance Advocacy Training. The aim of this 3-day session was to train non-Native legal advocates to better serve Native communities in indigenous environmental justice campaigns. After attending the training, my perspectives on what I define as legally “realistic” or “reasonable” shifted. It became even more clear to me that lawyers don’t create change; social movements do and the role of the justice lawyer is to support those movements. The conversations we had at the advocacy training reminded me of an essay written by Luke Cole, an attorney who pioneered the field of environmental justice at Center for Race, Poverty, and the Environment, titled “Forward: A Jeremiad on Environmental Justice and the Law” (14 Stan. Envtl. L. J. ix 1995):

“The law is dangerous to social movements because it is a cocooning and self-referential game in which its players believe they are important simply because they are playing….” “In a very real way, the legal groups are re-creating one of the roots of environmental injustice: the making of decisions by people not affected by those decisions.”

I fear that law as a development tool threatens to “regulate people out of existence” if not used carefully. An Alaska Native woman spoke of this same fear—of being “regulated out of existence”—at the Alaska Forum on the Environment last year. It has stuck with me ever since and came up again and again as I participated in the training.

Next, Jeni and I headed to Juneau, Alaska. We gave a 3.5 hour CLE workshop at a summit on the Politics of Global Climate Change Summit sponsored by the Juneau World Affairs Council. Jeni and I presented an adapted version of our “Imagining a Warmer World” slideshow on the human rights impacts of climate change. Then we facilitated a scenario planning exercise to imagine and plan for Juneau in the year 2040. About 40 people actively participated in the workshop on a sunny Veteran’s holiday, which was truly inspiring. (I will write a separate blog post summarizing the results of the workshop.) Jeni and I also had the great opportunity to be interviewed live about the Three Degrees Project on Juneau’s KTOO NPR radio station.

Our mentor and admired professor, Professor Bill Rodgers, has heroically completed his most recent book. It’s called Climate Change: A Reader (William H. Rodgers Jr., Michael Robinson-Dorn, Jennifer K. Barcelos & Anna T. Moritz eds., Carolina Academic Press 2011). 1206 pages & CD-ROM. (Full disclosure: Jeni was also an editor.)

Professor Rodgers, when talking about the book’s importance, says “[s]cience changes very rapidly. What hasn’t changed is the law. This book details what we know and what we can do. It also showcases the bright young intellects in the climate justice world. I’ve been up and down these roads before. I meant this book to be about them and for them.”

It’s a true honor to inherit Professor Rodgers’s time-worn dedication to climate change law in the form of this book. We are so incredibly grateful to work alongside him at UW Law to push the law to better reflect the current state of the science. Over the course of the year, we plan to share excerpts of the book with students in our Climate Justice Seminar and to regularly post reflections on the book as well as interviews with some of its leading authors.

To read excerpts of Climate Change: A Reader, click here.