The ice caps will melt long before they have standing in federal court – Law Journal for Social Justice


By Daniel Gonzalez-Aranda

The United States is not developing the necessary infrastructure to effectively combat climate change fast enough. For every generating station that begins development, there is a unique array of concerns about the environment, land ownership, regulations, and social justice that are hashed out over the course of years before any significant progress can be made. We cannot afford to continue evaluating each new renewable-energy project on a case-by-case basis if we hope to comply with our goals of bringing greenhouse gas emissions to net zero by 2050.

Instead, we need a proactive, ex-ante approach that will predetermine the uses of lands available for development, while including the voices and interests of all relevant stakeholders. If we delay any further, we risk either silencing those voices when we no longer have the time to holistically tackle the issue of climate change or simply failing—at the risk of millions of deaths at the hands of climate change.

Progress to combat climate change is slow—and more effective methods are necessary. (Photo: Jean-Christophe André via Pexels.)

Climate Change Threats

We cannot keep kicking this can down the road. Although, climate change is perhaps more akin to a snowball rolling down an ever-steepening mountainside, and we are trying to stop it when it is terrifyingly close to the valley below. If we keep fighting amongst ourselves, this snowball is going to take us all down with it.

To curb global warming at 2° Celsius above pre-industrial levels, several benchmarks have been laid out that include reducing greenhouse gas emissions by 50% by 2030 and achieving net zero emissions by 2050. Every year we delay curbing these emissions means having to compensate for those emissions[1] in a shorter time frame.

To make matters worse, the climate system seems to operate on a sort of positive feedback loop wherein multiple “tipping points” exist which, once crossed, create a snowball effect that makes climate change more resistant to reversal through a reduction of emissions alone. In 2019, the International Energy Agency estimated that the global rise in greenhouse gas emissions is not even expected to peak (and then begin to decline) before 2040. We do not have time.

Challenges of Addressing Climate Change

The obvious solution to climate change is to cut down on greenhouse gas emissions by phasing out “brown” non-renewable energy sources like oil and gas and replacing them with “green” renewable energy sources like wind and solar. However, this is easier said than done.

One of the biggest challenges facing the effective reduction of greenhouse gas emissions is the sheer scale and complexity of the infrastructure needed to build electricity generating sites that use green energy like solar and wind.[2] Transmission lines and generating stations need to be built on a national level, an undertaking that has often been compared in scale to the creation of the interstate highway system.[3] Building new infrastructure will require vast quantities of resources such as copper, lithium, cobalt, and other materials that must be mined, processed, and handled in light of complex logistical considerations.[4]

Copper wire is an important conductor used in wind turbines; it is also used to ground the turbines from lighting strikes and dissipate static electricity building up on the turbine blades. (Photo: Patrycja Grobelny via Pexels.)

The challenge before us, however, differs from previous large-scale projects in two important ways. First, we do not have a choice but to build the system within the next 20 to 30 years if we hope to preserve our society in a meaningful way.[5] And second, environmental regulations and social justice concerns that are meant to restrict the growth of brown energy are much more potent today, and ironically present as much of an obstacle for necessary green development projects as they do for oil and gas.[6]

The first difference means that whatever action we fail to take today will compound with actions we need to take tomorrow, making it more difficult to address climate change the further downhill we let the snowball get. This result is made all but inevitable by the fact that federal, state, and local siting and environmental compliance laws as well as social justice considerations have a history of grinding the progress of necessary projects to a halt.[7]

Another important reason that delaying our response to climate change is so detrimental is the fact that regardless of when we choose to act, the infrastructure needed to fulfill the Green New Deal will still necessarily take up a lot of space. We will still need to develop the transmission lines across the nation and build generating plants, which will require the use of eminent domain on private land and securing easements, like what was required to build the interstate highways.[8] However, the less time that we have to act, the more likely that the process will be rushed and necessarily trample the interests of people most affected by these land takings and easements.[9] This includes the interests of private landowners, companies, farmers, fishers, and even Native American tribes that happen to be in the way of new infrastructure.[10]

If we had the time to spare, we might be able to slowly figure out the best allocation of resources and balancing of interests on an ad hoc basis to achieve the most equitable and efficient use of land. But the reality is that we do not have the time, and our track record shows that private interests are too many and too varied to work efficiently without a plan. Left to their own devices, private developers may take an impermissibly long time, and there is a very real chance that the infrastructure needed will ultimately not be built.

In Maine, for example, one of the first offshore wind farm projects undertaken in the U.S. was so burdened and delayed by countless regulations from local, state, and federal government, as well as objections from tribes and environmental advocates, that the developers ultimately spent 16 years and $100 million only to relinquish their offshore lease rights in 2018.[11] Today, litigation is still ongoing about the validity of a land transfer from 2015 that would tap into the third largest copper deposit in the world—copper that we sorely need to create green infrastructure.

Offshore wind farm development is on the rise. (Photo: Nicholas Doherty via Unsplash.)

Oak Flat Copper Mine

The Court of Appeals for the Ninth Circuit is currently deciding the fate of an important mining project located beneath a historic religious site that is important to the Apache people and their religion. The contested area, Oak Flat, is located on federally owned land that lies outside the Apache reservation, but the tribe is known to use it for religious ceremonies and believes it to be a holy land connected to their deity.

In 2014, the U.S. Congress—whose legislative history can only be described as suspect—passed legislation transferring land to a subsidiary of Rio Tinto, a mining company, for the purpose of extracting copper from the site.[12] The land transfer was conditioned on the preservation of a historic, protected piece of land known as Apache Leap, as well as continued access by the public and members of the Apache tribe, at least until the area is no longer considered safe for visitors. The 2014 act also required the U.S. Forest Service to negotiate with the mining company for mutually agreeable ways to operate the mine that account for tribal interests.

This led a private interest group made up of Apache citizens, Apache Stronghold, to bring suit for a temporary injunction on the land transfer as unconstitutional. The group argues that the transfer violates the Religious Freedom Restoration Act (RFRA) and the Religious Land Use and Institutionalized Persons Act (RLUIPA) because, once the land is transferred and the copper is mined, the resulting subsidence will destroy the tribe’s holy land and leave nothing behind but a massive crater. This will diminish the Apache people’s ability to practice their religion and thus creates a substantial burden on their religious freedom. Apache Stronghold’s worries are especially justified considering Rio Tinto’s problematic history of destroying aboriginal sacred sites, blowing up sacred caves, and dumping tribal artifacts while managing mines.

The U.S. government, on the other hand, argues that a “burden” on religious freedom is a term of art, which the court has defined to include only instances in which the government is coercing an individual or group directly by threatening to impose civil or criminal sanctions. It argues that, in light of the Supreme Court’s decisions in Bowen v. Roy[13] and Lyng v. Northwest Indian Cemetery Protective Association,[14] it is “clear that strict scrutiny does not apply to government actions involving only management of internal Government affairs or the use of the Government’s own property or resources,” which includes the disposal of federally owned property in which the plaintiff has no real or vested property interest.[15]

Apache Stronghold, a community action group formed by members of the Apache tribe, is suing the United States for allowing copper mining to take place in an area of Arizona with great religious significance to the tribe. (Video: Becket via YouTube.)

Do We Have Time to Wait for an Answer?

The Stronghold case hinges on whether the land transfer is a substantial burden on the Apache people’s right to religious freedom, which would determine whether the Court should review the land transfer under strict scrutiny or not. Apache Stronghold contends that strict scrutiny is the appropriate lens through which to view the issue because it allows the government to weigh the religious burden against any compelling government interest in erecting the mine. The government contends, however, that balancing those interests should and has been done by Congress when passing the original legislation.

There is no guarantee that successful adjudication of this matter—in either party’s favor—will provide substantial legal precedent creating the efficiency required to tackle climate change. If Apache Stronghold loses and the Court finds a compelling government interest that outweighs the tribe’s burden, not only will the Apache people have lost access to a religious site they have enjoyed up to this point but, in future disputes over infrastructure supporting renewable energy, other tribes or individuals with personal interests in the land may still argue that their cases are distinguishable from this one and that they face a substantial burden. The Stronghold case may have very little or no preclusive effect on future adjudications.

If the tribe wins and establishes legal precedent for a more expansive definition of “substantial burden,” federal courts will still have to weigh the burden against the compelling government interests involved in mitigating climate change to see if the government’s plan is “narrowly tailored.” The government could try to pass a more narrowly tailored law and jump through all the hoops needed to pass strict scrutiny analysis and still be unable to establish projects that are essential to addressing the existential threat of climate change that looms over the world.

Oak Flat is an area of federally-owned land in Arizona with important historical, religious, and cultural significance to the Apache people. (Elias Butler via Wikimedia Commons.)

Potential delays to climate change action are impermissible and may perpetuate disproportionate impacts on minority communities or diminish public participation in climate change solutions as the problem continues to escalate. The First Amendment, the RFRA, and the courts are essential to righting wrongs and preventing injustices that make it through the gaps in our legal system, but these remedies are not efficient or speedy. The glacial speed of the courts is not conducive to fighting climate change.

What we need is an ex-ante approach that allows us to properly determine appropriate sites for development without the consequence of diminished public participation by the groups whose interests are most affected. In Arizona, the Department of Defense led a successful undertaking to predetermine lands available for wind farm development while avoiding objections from the Federal Aviation Administration (FAA) and military bases, which notoriously stonewall these developments due to potential interference with aircraft scanners and instruments caused by wind turbines. If a developer is looking to build a wind farm, they can apply for approval to view this prepared map[16] to find areas free of possible objections, streamlining the development process and cutting down the time needed for construction.

Conclusion

I propose we begin to explore possible options of proactive collaboration with greater urgency. While the courts are not able to do this, Congress has the power to establish a committee or empower an existing agency to set the table for this discussion and provide the proper incentives to sufficiently attract tribes to the discussion while ensuring their rights are protected. Incentives should include land-back programs approved by Congress, other forms of reparations, and the official establishment of easements for tribes that give them greater standing under RFRA and the Takings Clause, should they decide their interests are not being considered.

One such proposal focuses on an “artificial budget” to help tribes protect sacred lands outside their reservations without any need to justify their reasoning or religious beliefs and practices.[17] The government would be bound by these agreements and would be barred from developing on protected lands, while tribes would agree to waive claims to lands outside the agreements.

Whatever shape these proposals take, it is clear that courts are not well-equipped to handle climate change considerations in the time frame demanded by the current crisis. Admittedly, the current Congress cannot even agree on a national budget and may face its own issues with prolonged delays in decision-making. But the fact remains that we do not have 10 years to spare for every mine, generating plant, or mile of transmission cable that needs to be built, which is what we can expect unless there is a drastic change in our approach. We need to take active measures that include all of our voices before the snowball gets too big and wipes us all out.

[1] J. B. Ruhl, What Happens When the Green New Deal Meets the Old Green Laws?, 44 Vt. L. Rev. 693 (2020), https://scholarship.law.vanderbilt.edu/faculty-publications/1168.

[2] Ruhl, supra.

[3] Ibid.

[4] Ibid.

[5] Ibid.

[6] Ibid.

[7] Ruhl, supra.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.; Public Employees for Env’t Responsibility v. Hopper, 827 F.3d 1077, 1082-83 (D.C. Cir. 2016).

[12] Becket, Apache sacred land threatened by mining in Arizona, YouTube (Nov. 16, 2022), https://youtu.be/Zh68xOn0B_8.

[13] Bowen v. Roy, 476 U.S. 693 (1986).

[14] Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).

[15] Stronghold v. United States, 38 F.4th 742, 763 (9th Cir. 2022).

[16] The Arizona Military and Energy Land Use Plan maps are not viewable by the public because they contain information important to national security.

[17] Troy A. Rule, Preserving Sacred Sites and Property, Wis. L. Rev. (forthcoming 2023).

Daniel Gonzalez-Aranda (he/him) is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. Prior to law school, he graduated from Johns Hopkins University with a bachelor’s degree in political science. Daniel has a strong interest in infrastructure and city development and hopes to build better cities that everyone can enjoy. Outside of school, you can find him planning a Dungeons and Dragons campaign and practicing Brazilian Jiu Jitsu.



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