Final Paper Outline
“The Flow of Authority: Precedent and the Presence of the Future in Two Fossil Fuel Cases”
- Introduction
This paper examines two cases from opposite ends of the fossil fuel extractive system: Juliana v. United States, addressing the effects of greenhouse gas emissions in the United States, and the Amazonas Superior Justice Court decision on the 2009 Bagua massacre in Peru, which resulted from conflict over the granting of oil drilling leases on indigenous land in the Amazon. By examining the variety of legal and non-legal sources cited by the judge in each case — and, more importantly, the posture each judge takes vis-à-vis these sources with regards to espousal of a particular view of humanity’s relation to an external nature — I explore how jurisprudence offers a site for conflict between distinct political views of relations with the nonhuman.
- Juliana v. United States
- Reliance on Supreme Court jurisprudence on reproductive/marriage rights (Obergefell, Roe v. Wade), and its significance
- Figure of the “future generations” – as disputed legal subject deserving of protection from climate change harms and as object of Founding Fathers’ concern for creating a flexible or living Constitution (e.g. one that might encompass a right to a stable climate)
- Who’s speaking? The line of precedent (usually) or the first-person judge (rarely, but significantly when precedent calls for “reasoned judgment” on whether a new constitutional right should be recognized and when called upon to resist the “constitutionalization of all environmental claims”
- Shadow of deep history: stable climate as necessary basis for civilization (like marriage)
- What’s missing? Any detail on how climate system works and what its effects will be; any account of effects beyond the United States (except with regards to difficulty of accounting for global causation and remedy)
- The Bagua decision
- Overview of the social conflict, the long struggle over consultation with Amazonian peoples prior to allotment of drilling lots, and the distinction of Peruvian jurisprudence (much greater importance of international and human rights law, Latin American legal culture, etc.)
- Long historical discussion of the settlement of the area and European-Jíbaro conflict; development of property law in Peruvian Amazon
- Recognition of judiciary’s failure to equitably enforce law against white and mestizo settlers in area
- Endorsement of “cultural” understanding of law as a “social phenomenon” rather than list of rules – linked to contemporary notion of plurinational state
- Legal pluralism as an “interpretive form” and how it relates to enforcement of criminal law
- Implicit links between biodiversity, economic interdependence, multicultural state, and legal pluralism; progressive jurisprudence as model of consultation
- Description of Jíbaro “cosmovision”: do these ideas influence the judge’s reasoning, or do they merely require greater flexibility in the application of the law?
- Shift to different register/area of doctrine: the right to protest (not the same as the right to free speech), discussion of means vs. ends and proportionality
- Ultimate conclusion: the protests were a legitimate defense of indigenous territory, which is a fundamental right
- Cf. fundamental right to stable climate system in Juliana
- Acquittal presented as part of larger effort to reform political relations with Amazon indigenous