Imagine, 5 young people, a couple of parents, and two childrens’ organizations in the US – Kids vs Global Warming and the Wild Earth Guardians – are suing the mighty U.S. government.[1] The case is of the utmost relevance to all of us, all citizens of the world, wherever we might live. And actually, it should be brought forward against all governments on earth, if only to raise awareness of the issue: The young people want to force the U.S. government to immediately implement policies which stop the destruction of the earth from global warming. More concretely they demand policies which reduce annual CO² emissions, so the world is maintained at current temperatures.

Defendants in the case are various top members of the U.S. government including the secretaries for the interior, for energy, and defense, and the administrator of the United States Environmental Protection Agency. Amazingly and probably for legal reasons, the President himself has not been charged, even if in the eyes of society the head of state of a nation certainly is the main person responsible for government policy making.

In the first round of litigation the case was dismissed by a court in Washington D.C. The plaintiffs filed for appeal of the decision in the U.S. court of appeals in June 2013. At present the case is gaining more and more support by experts and organizations within the U.S. Key scientific advisers for the plaintiffs are a team of scientists around the reputable U.S. climatologist James Hansen including the economist Jeffrey Sachs. The team puts severe considerations forward suggesting that the current climate goal pursued by the international community, the aim to limit the temperature rise at 2ᵒC, more than twice the amount of global warming already incurred over the last 100 years, is far too dangerous and irresponsible[2]. All in all, the situation is even far more critical than these numbers suggest, since it is by no means certain that our international governments will even achieve the more lenient target set by them.[3]

So how should we judge the case against the U.S. government?

Increasing public perception on the facts of global warming

First of all we have to highly welcome the litigation, because it generates publicity for this issue of the highest relevance to all of us and of even existential importance for future generations.

Many, if not most of us, have not realized it yet or still have doubts, but all evidence, generated by the probably largest and most comprehensive research effort the world has ever jointly undertaken, confirms: Our behavior, billions of people around the globe relentlessly burning fossil fuels, is, with all likelihood, causing the destruction of the earth. A report written by more than 250 scientists from 39 countries around the world which took into consideration more than 50000 publications and commentaries from scientists all around the world confirmed those risks in September 2013.[4] Our behavior threatens to increase global temperatures by about 5ᵒC by the end of the century, it is in the process of changing weather patterns and living conditions all over the world, it is causing desertification, and floods, as well as the rise of the sea level in the world, which could well increase by 20 meters over the coming centuries or millenia[5]. If we allow this to happen, the sea will flood large parts of the earth, land and urban agglomerations, directly affecting the life of a large share of the global population and indirectly the entire global population. Finally the warming caused by us threatens to extinguish up to 50% of all species on the earth already by the end of this century, which, because of the interdependence of all life on earth, must have gravely deleterious impacts on the quality of human life on earth as well.

If we still do not believe that this is the case, we are not entitled to rely on random newspaper publications to inform us. If some of the most acknowledged scientists in the world tell us that we are causing the destruction of the earth and that urgent action is necessary to protect it, we must take such a statement extremely seriously. We are obliged to our children and to future generations to examine it ourselves and to establish for ourselves, what the truth is. We are responsible to demand a clarification from our governments. Their proposition that the information “is available” is not good enough. They must present the information in a manner understandable by all people. They must ensure that people know what is happening, just as they ensure that drivers know the traffic rules.

(Note: For more information on the basic facts on global warming and what we have to do about it, please, see https://optimizingdemocracy.files.wordpress.com/2014/01/global-warming-facts-and-assessment-compilation-february-2014-optimizingdemocracy.pdf)

Copying the litigation in other countries

One prime disadvantage of the case brought forward in the U.S. is that it is in fact only brought forward in the U.S. Even if the U.S. are a major contributor to CO² pollution of the atmosphere, they are by no means the only ones. [6]All people and countries on earth need to co-operate in stopping global warming and the destruction of the earth. Organizations working to stop global warming in any nation should consider following the example of the young people who are suing the U.S. government, so that necessary actions are not delayed in any country.

 The effectiveness of the litigation

While the litigation, while raising public awareness, and moving the policy issue to the top of our agenda are steps of prime relevance to protect the earth against the risks of global warming, we should be aware that the litigation will not in itself achieve that effective policies are put into place. Whatever the outcome of the litigation will be, we still need effective policy making systems to design and to implement the best policies we can only conceive.

One fundamental problem, which the case seems to suffer from and which delays an adequate outcome, is that the issue is being squeezed into a set of legal concepts partly deriving from Roman and medieval times[7]. Yet never before in the history of mankind has the earth been at stake. Old legal concepts, it appears, cannot do justice to such an existential issue of a new kind and of completely new dimensions. Allowing a solution to be slowed down by a discussion of all kinds of legal aspects, such as whether dealing with the atmosphere as a public trust domain is a case of state or federal law, appears to even be inadequate given that allegedly the fate of the earth is at stake and delaying suitable measures to protect it will make saving the earth more and more difficult.

Does it exist, our obligation to protect the earth?

Since the whole issue is novel and of unprecedented character we should perhaps use common sense to guide our decision making on the case, rather than relying on pre-cast historic legal concepts. If we think in problem solving-oriented, constructive terms, the prime question to answer is likely to be: Are we obliged to protect the earth for future generations or not? Even if a court should decide that such an obligation exists for reasons of the law, the success of a national and global program to stop global warming will depend on whether the wider public also subscribes to the duty to protect the earth.

In conversations many people, even if they might have grown up children and become grandparents in a few years, give in to the perception that it could well already be too late to take co-ordinated action, that the support for any program would probably not be wide enough and that, looking at the history of the earth, it might rather be a normal process for a species like man to become extinct. In accepting these as “unalterable developments” they ignore that the destruction of the earth will be a long disastrous process for the nine billion people forecast to live on the globe in the near future. To convince wider society that we indeed must protect the earth and that as a consequence a substantial change in our style of living is necessary, will require outstanding leadership, even if the outcome of the litigation should confirm such an obligation.

A next question to answer will be, which priority policies to stop global warming must have in relation to all other policy issues. The answer to be suggested by common sense will with all likelihood be: The highest priority, since maintaining the earth is the pre-condition for any life and activities on earth. All other policy issues, even those of maintaining jobs and providing good health care are of adjunct, secondary importance compared to protecting the earth, it cannot be the other way around. That is what our governments do not seem to realize and this is one reason why this court case is so relevant.  (The scientists supporting the case highlight that efforts to stop global warming will not necessarily hamper economic development, but is actually likely to create jobs. Stopping emissions will protect the health of human beings.)

As the judge dismissing the case in the first instance points out, however, and rightly so: Courts cannot decide what the best action in a specific policy issue such as global warming is.[8] What a court could possibly do is to enforce that governments follow a certain “governance code” in policy making, prescriptions on best-practice processes and procedures in policy making. But then such a code would have to exist and it would have to contain a set of regulations suited to lead to effective policy making.[9]

Even if researchers like James Hansen are convinced that certain steps are urgently necessary to stop global warming, they will concede that a government must adhere to certain procedural standards: Government must examine and confirm the nature, the magnitude, and the urgency of the problem, it must –  to start with – establish a consensus on the obligation to preserve the globe in the nation, it must identify the very best strategy against global warming – one which as a secondary condition does not stop the functioning of our economies and societies. Government also must have or establish the capacity to implement these strategies as effectively and efficiently as only possible.

In the end, the plaintiffs can at best expect that the Court of Appeal decides that there exist justified grave concerns that the world is at risk from global warming and that it orders the government to assess the matter and to take the necessary steps to protect the earth as soon as possible. The scientists cannot presume or demand that the government and its responsible agency comes to the same results as they did. But if they have worked correctly and if the government establishes the best decision and policy making capacities, then the result should be the same, at least roughly.

The parameters deciding on the success of the initiative

What is necessary then to ensure that government policy making is “as effective and efficient” as only conceivable in the fight against global warming and that it arrives at the best policies in the shortest time frame possible?

We suggest the first overall precondition for arriving at optimal measures against the threat of global warming are optimal decision and policy making processes in the overall policy making system.

The establishment and implementation of processes of such prime quality depends on:

•  Optimal know-how
• The optimal qualification of policy makers
• The motivation of policy makers to exclusively serve the common good or public well-being (or: the exclusive focus of policy makers on the common good)
• The power of policy makers to implement  policies serving the common good.
• The quality of control over the policy making processes by the stakeholders, by wider society.
• The resources available for policy making (design and implementation).

As we said these observations will be of the highest relevance for the parties suing for an injunction to make the government design and implement the policies required to stop the destruction of the earth: Only if the mentioned parameters are in place will the government have the necessary qualities to cope with global warming effectively. The stakeholders interested in protecting the earth including the persons bringing the court case against the US government forward must ensure that the policy making bodies have those qualities. Otherwise their endeavors will not generate the required success.

Qualification of politicians and strategy making competencies

One central aspect on which we, as citizens, are just too lenient is that our governments and politicians may simply lack the required qualification and strategy making competencies to manage a complex policy issue like global warming appropriately.

The following statement from an official report by UK parliamentarians examining the strategy making capacity of the British government in the year 2012 articulates those crucial deficits lucidly and even with express reference to climate change (we have underlined the most critical passages) [10]:

 “We have little confidence that Government policies are informed by a clear, coherent strategic approach, itself informed by a coherent assessment of the public’s aspirations and their perceptions of the national interest. The Cabinet and its committees are made accountable for decisions, but there remains a critical unfulfilled role at the centre of Government in coordinating and reconciling priorities, to ensure that long-term and short-term goals are coherent across departments. Policy decisions are made for short-term reasons, little reflecting the longer-term interests of the nation. This has led to mistakes which are becoming evident in such areas as the Strategic Defence and Security Review (carrier policy), energy (electricity generation and renewables) and climate change…”

The statement could well have been written by parliamentarians in any democratic nation, simply because fundamental processes and structures are similar in all democracies and lead to comparable outcomes. The fact that we, as citizens, accept deficits in the quality of policy making processes like these and the lack of qualification of the people establishing those processes is one cause which could lead to the destruction of the earth.

Motivation, Focus, and Power

The “motivation”, the exclusive “focus” of people involved in the policy making process on the common good is of equal relevance for effective policy making against global warming and in other policy areas. What prevents politicians in democracies from directing their actions to the well-being of wider society may be the desire for maintenance of power, the looking-out for votes and voter reaction, and as a consequence the concentration on more noticeable issues of more immediate relevance to society. Also career considerations or personal interests will distract politicians from focusing on the common good and, of course, corruption and nepotism are detrimental issues in many democracies, diluting or even destroying the effectiveness of policy making for the common good.

Furthermore politicians must not only have the capacity and the motivation to work for the common good, but also the power to implement optimal policies. Everybody behind the litigation will be aware that there are gigantic and even understandable global corporate interests against stopping the burning of fossil fuels. Those interests will do everything possible to prevent policy makers pursuing what must be their primary goal in the interests of this and future generations, the protection of the earth, so future generations can live on it. As odd as it may sound, government may even have to examine possibilities for compensating investors in fossil fuels, to bring them to support policies to protect the earth. Those investors might claim to have invested “in good faith”.

The decisive role of control by citizens

 The support of the courts will in any case not be sufficient to overcome such inertia or outright resistance against policies to protect the earth. As Lincoln states, ultimately democracy is government also by the citizens. In order to ensure that our policy makers focus on the common good and have the power to implement measures serving the common good, wider society must both control and support its politicians, it must endow the power of wider society on them so politicians can withstand the pressure of select interest groups.

 We as members of society cannot rely on our representatives in parliament to exert effective control over our policy makers on our behalf. One key statement in the report on the Deepwater Horizon oil disaster in the Gulf of Mexico was: “In short, it took a catastrophe to attract congressional attention.”[11] What this statement means is that also our parliamentarians do not have an effective process to identify risks for the well-being of society and to ensure government policy making is effective.

The persons and organizations behind the court case on global warming do not only want to win the court case, ultimately they want to ensure the best measures are taken by the government to stop global warming in the shortest time frame possible. They will only arrive at this goal, if they themselves exert constant and effective control over the entire policy making process required to protect the earth and if they rally as much support as possible behind their case.

Procuring the necessary resources for effective policy making

 Governments finally often fail in their policy making because they do not have the resources necessary for effective policy making.

As the report of the commission inquiring the causes for the Deep Horizon oil disaster in the Gulf found out, this was the case for the government agency supposed to control deep sea oil drilling and one reason why the disaster happened. The report states: “But over time, (the agency) increasingly fell short in its ability to oversee the offshore oil industry. The agency’s resources did not keep pace with industry expansion into deeper waters and industry’s related reliance on more demanding technologies.“ [12]

Many people in the U.S. aim to reduce the role of the state by “starving the beast”. This is the wrong approach, if we want to preserve public wellbeing, as the Deepwater Horizon case demonstrates.

In a time when technologies in many areas advance and have more and more decisive effects on our environment and lives, in a world of now seven billion people with ever more complex policy issues it is essential that our policy systems have the resources to fulfill their tasks. Rather than reducing the funds we provide to our public policy systems we may have to enhance them. The people driving the court case and generally anybody interested in stopping global warming must aim to ensure that government has the resources and the capacities necessary to design and implement the required policies to stop the destruction of the earth.

Other existential threats to the well-being of future generations

As necessary and valuable as efforts like the court case against the U.S. government on the issue of global warming are, the problem is: They neglect that other issues of “existential” character threaten the well-being of this and future generations as well. This will be of particular relevance also for organizations aiming to protect the rights and the future of children such as the plaintiffs in the court case, Kids vs Global Warming and Wild Earth Guardians.

In his book “The Future”, published in the beginning of 2013, Al Gore presents a substantial discussion of a number of present critical threats to humanity[13].  One of them appears to be at least of the same magnitude as global warming: With the help of biogenetics and largely unnoticed from the wider public we, humanity, are actually in the process of changing life on earth as we know it, human and animal life.[14] Biogenetics will enable us to extinguish many hereditary genetic diseases. At the same time biogenetics will soon allow us to create designer-babies, whose traits parents or, perhaps at some point in time, society will select. We might turn to throwing away millions of embryos with genetic defects.  At the same time we are also changing the life of other creatures:  Does humanity really need goats which produce spider silk? Are we going to be able to control the new technologies and their effects? Aren’t we going to create chaos, if we interfere into even the design of life?

As Al Gore points out, society across the globe does not discuss these questions of existential relevance, we lack adequate leadership by our political leaders and we don’t steer. In our terms: We lack effective policy making systems.

A further threat to humanity is the increasing surveillance by governments and corporations. On the internet, “I read and I am being read”, formulates the editor of a leading German newspaper[15]. More and more observers see us approaching the scenarios of “Brave New World” and of “1984”, the scenarios described by Huxley and Orwell in which human beings have no freedom whatsoever, in which they are subjects controlled, manipulated, and perhaps even bred by their governments.

A next problem is that advancing technology such as robotisation and 3D-printing combined with the global transferability of production via the internet threatens to cause the loss of more and more jobs also in industrialized countries and even already in newly developed countries like China.

Not only Al Gore highlights the growing imbalances in wealth, income distribution, and the outright poverty also in the West as a result of these developments as well as the ensuing risks to peace and social stability. In 2009, twenty years after the Berlin wall came down and in the light of the increasing disparities between the rich and the poor in the world, Mikhail Gorbachev already demanded that we need to redefine global democratic capitalism, if we want to avoid social destabilization, conflicts, and terrorism.[16] The renowned British-American historian Tony Judt warns that the increasing economic and social imbalances would cause collapse and brutality in our societies resembling the break-down of societies before WW II.[17] In his 2010 book ”Time for Outrage” (“Indignez-vous” in the original French title) and at already 93 years of age, Stephane Hessel, a WWII concentration camp prisoner, French resistance fighter and former diplomat also expressed his distress with the new extreme discrepancies between the poor and rich and the resulting threats for peace and democracy. In the light of the failure of the leaders in governments and society to cope with these issues he called on the young people of the earth to take charge of the creation of just and social democracies.[18]

While all of these developments are going on, global power is “in the balance” as Al Gore emphasizes. There presently is no clear leadership structure in the world anymore. Generally, nation states are more and more powerless against large global corporations. Furthermore their influence is diluted by ethnic allegiances of people exceeding the boundaries of nations.

The need for policy making systems of the highest degree of effectiveness and efficiency

Fighting against global warming probably must have the highest priority among all the urgent policy concerns humanity is facing at present. But if we want to maintain the globe, humanity, and our societies in a sound and healthy state for future generations, if we want to maintain peace and well-being in the world, we have to address all the issues threatening the globe and humanity effectively at the same time. Directing energy exclusively to global warming appears as if we wanted to plug one large hole of a leaking barrel, while water comes running out of six or more other big holes. Keeping the water in the barrel requires a comprehensive and highly coordinated effort.

It is obvious that we cannot address all the pressing issues in the world of today by first having to go to court on each issue. The process takes too much time and, as the scientist Hansen points out, comes also too late:  Had our governments initiated reductions of CO² emissions already in 2005 decreases of only 3.5% per annum would have been necessary to maintain global temperatures at present levels, now we need to reduce CO² emissions already by 6% per annum. If we wait until 2020 a reduction of 15% per annum will be necessary.[19] What this would mean for our economies we can perhaps grasp, if we imagine we personally would suddenly have to put aside regularly 15% rather than 3.5% of our monthly income for some expense which we did not anticipate at all.

Wasting time can “cost the earth”, the stability of our nations, and millions of human lives. Instead of society having to engage in a court case against their governments possibly over various competing policy issues, so they take long overdue action, our policy making systems need to be so effective that they take the necessary steps by themselves for each policy issue at the earliest opportunity. We as citizens must find ways and means to ascertain that our governments operate so effectively.

An initiative for optimizing the policy making system in the U.S.

All in all our world and humanity of now seven billion people appears to enter a new age with technological possibilities and opportunities, with systemic challenges and threats of a new dimension of interdependence and complexity –while many old problems such a large scale poverty and hunger also persist.

A new age, a new situation requires from us to rethink our conceptions and patterns of behavior. Our only chance to tackle the various existential problems threatening humanity  simultaneously at the present time is by reviewing the capacities of our policy making systems and by ensuring that they perform at the highest degree of effectiveness and efficiency possible.

So far most of us living in democracies have taken this advantage for granted. So far we have relied on our governments to handle public policy for us. What the many failures of our governments show us, is that we cannot afford to be so indifferent about government policy making anymore.

Our ancestors fought with their lives for freedom and democracy. We, the citizens of, democratic countries must realize again that living in a democracy is a privilege and an obligation and that we personally, not our governments, are responsible for maintaining the earth. We personally are responsible to ensure that the way we manage our society and our world is effective. We as citizens are responsible to establish effective governments and policy making systems.

To ensure that our governments cope effectively with the challenges and threats of our time, we as citizens need to be effective ourselves. We need to create a strong joint citizens’ initiative to ensure the effectiveness of our policy making system across the board. In the U.S. such an initiative might be called “Optimizing Democracy USA”. Of course, similar organizations are required in all democratic nations. Their task is to make sure that our policy systems are equipped with the parameters necessary for their effectiveness.

Let us come back to the court case against the U.S. government. If we realize, that in a democracy, we the people are ourselves responsible for governing the world, it follows that it is ultimately us, ourselves, who should be sued, not our governments, if we fail to protect the earth. Our politicians think, are trained, and operate within the confines of the political system we (or our ancestors) have established. If the policy making system doesn’t generate the results we require, we are obliged to look for ways to make it able to cope with the challenges and threats of our time.

Global warming and the other policy issues mentioned are of the greatest urgency. If we want to guarantee the well-being of and protect the earth for future generations, we cannot delay our efforts in making our governments and policy making systems as effective as required.

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