there seems to be an invisible hand tugging from big oil, keeping a dying industry on the playing field at an unfair advantage.

our children’s trust, with a group of 21 young plaintiffs from all four corners of the country and everywhere in between, have called in the judicial branch as a referee. they hope to put a halt to irresolute treaties and talks; they’re calling for a concrete, national science-based climate recovery plan. 

“climate denial in court is perjury,” said jacob lebel, 21, a plaintiff in the case. “the courts are seen as a place where that dialogue, and that change, can still happen.” (full disclosure: lebel was a planet 世界杯欧洲预选赛免费直播 for the 2016-17 school year, and a 2017 storyfest winner. he did not cover his court case while contributing to planet forward.)

spearheaded by human rights attorney julia olsen, lebel and the other young plaintiffs have filed the case juliana v. u.s., on the grounds that continuous administrations have ignored their own commissioned experts on the dangers that climate change poses to our nation.

the trust, a nonprofit organization, aims to elevate “the voice of youth to secure the legal right to a stable climate and healthy atmosphere for the benefit of all present and future generations.”

the case was filed in 2015 against the obama administration and federal government. the obama administration responded with a motion to dismiss. meanwhile, big oil interest groups intervened on behalf of the defendants, and have subsequently withdrawn. the motion to dismiss was denied, and accompanied by a withdrawal from the case by big oil. a court date was set for february 2018. but the change in administration brought forth a petition for writ of mandamus — a final attempt to dismiss the case — and the proceedings were once again put on hold. however, on march 7, the petition for writ of mandamus was denied by the ninth circuit court without prejudice, and the case will move forward on oct. 29.

a long history of governmental indifference

the case itself is relatively new, but its history extends back centuries. according to the case, the united states has emitted 25.5% of the world’s cumulative carbon dioxide emissions from within its borders between 1751 and 2014. scientists have known since the late 19th century that the increase of carbon dioxide in the atmosphere would elevate the earth’s surface temperature.

in the mid 1960s, the administrations of both presidents lyndon johnson and richard nixon were warned by advisors that increased carbon dioxide levels would adversely affect the livelihood of american citizens. then, in the late 80’s, the director of nasa testified before congress that effects from carbon pollution in the atmosphere were already being observed.

a report from the environmental protection agency (epa) submitted to congress in the early 1990s concluded that reductions in carbon dioxide emissions were the only way to stabilize the climate. following the epa report, the congressional office of technology assessment (ota) delivered to congress a comprehensive conservation, energy-supply, and conservation package that could lower carbon dioxide emissions 35% from 1987 levels, and save the federal government $20 billion per year.

the senate responded by ratifying the united nations framework convention on climate change (unfccc) with a vague objective: the “stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.”

almost 30 years and countless non-binding treaties later — including the recent paris accord — we are still at a standstill with the implementation of a national carbon dioxide emission reduction plan. instead, the total u.s. production and consumption of fossil fuels has increased and public lands have been leased excessively for the production of fossil fuels, much of which has been driven by federal subsidy money, according to the lawsuit.

“we don’t want the courts themselves to make policy, we’re not asking for a carbon tax per se, or a particular policy, because that’s the job of congress and that’s the job of the president’s office and the agencies,” lebel said.

the aim of the case is to create a concrete emissions reduction goal that is legally binding. from there, it is the job of the executive agencies to decide how to reach this goal.

local representation based on climate science

just decisions, however, are not possible without accurate representation. a lot of the decision making power for local energy projects comes down to a non-elected, politically appointed board of five commissioners at the federal energy regulatory commission in washington d.c., according to lebel.

lebel’s frustration with the federal energy regulatory commission starts in his backyard in oregon, where the jordan cove natural gas pipeline was proposed to run on land a mile off the border of his family farm. eminent domain allows the government to seize private land for public use in situations that would benefit the public, as long as the landowners are justly compensated. the concept was originally for public utilities that the majority of the public benefitted from without destroying vital resources. the landowners affected by this pipeline would be monetarily compensated, but lebel and others — republican and democrat alike — agree that the land has intrinsic value worth more than a payoff.

if the majority of the community benefits from a project like this, and it doesn’t destroy vital resources or endanger the community to a high degree, there would not be as much opposition as there is today on these pipeline projects like standing rock and jordan cove, according to lebel. seeming indifference from the commissioners prompted lebel to become more involved in agency meetings and eventually led him to a five day fast in washington, d.c. to raise awareness of the issue.

“perhaps these should be elected commissioners if they’re holding this much power over our energy system,” lebel said.

the national oil economy is driven by projects such as these; projects where local residents have no representation in the decision making process.

“we want the climate science to be recognized and implemented at the highest levels of the government,” lebel said.

another young person involved in the jordan cove fight reached out to lebel and asked if he would like to join him in a case challenging the u.s. government’s fossil fuel policy with other youths across the country. our children’s trust started from a local, grassroots level; many youths in the case have similar experiences with local energy projects or indirect effects of climate change that have degraded the environment around them.

for lebel, on the west coast, this involves more intense fire seasons, for plaintiffs in louisiana and florida this involves more intense flooding. regulating carbon dioxide emissions top-down from a federal level could result in more concrete local solutions.

court legislation as a catalyst for change

throughout history some of the most progressive change has happened when polarization has brought an issue to its breaking point. lebel says that brown v. board of education is an inspiration to this case; the public will wasn’t quite there yet for desegregation but the courts stepped in to defend the rights that were being violated.

according to the yale program on climate change communication, 74% of the u.s. population does support the regulation of carbon dioxide as a pollutant. the climate science has convinced the people, and now the government and private sector need to catch up.

“there’s real, tangible, constitutional rights being violated here through our government’s actions and historical actions,” lebel said.

the lawsuit holds the executive agencies and private sector accountable for these constitutional violations while allowing freedom in the implementation of these goals. climate change extends beyond the realm of fossil fuel emissions: from deforestation and soil degradation to over-consumption and ecosystem collapse. it is a multifaceted problem that garners a multifaceted solution. however, to lebel the root of the problem stems from something simple.

“i actually don’t believe that our problem is that climate change is too complex, the problem is that there’s no will to act,” he said. “there is a deliberate indifference, there is a deliberate ignorance of what these decisions at the level of our government and policies are doing to my generation, to our children’s generation, and to our entire planet: our entire life support system.”

planet forward: can you tell us a little bit about your work at the delaware riverkeeper network and how you got involved in this group?

maya van rossum: my official title is the delaware riverkeeper. my job is to be the voice of the delaware river. what that means is that i work hard to make sure that any time decisions are being made, or actions are being taken that would impact the delaware river or any of its contributory streams, that the delaware river has a voice in the room. [i make sure] its needs and goals of protecting it are given the highest priority in the decisions that are being made. now of course that’s not the job of one person. there’s no one person that can protect an entire river or, certainly, an entire river’s watershed. it really requires a community effort. and so, i do have a wonderful community that works with me. i have a staff of 20 at the delaware riverkeeper network… and then we have nearly 20,000 members throughout the watershed that help us fight the good fight for the river.

planet forward: in your book, you talked a lot about the failures of the pennsylvania department of environmental protection. can you tell us why these environmental agencies tend to fail at fulfilling their basic duties? would you equate these failings to regulatory capture [that is, where a regulatory agency doesn’t act in the public interest]?

van rossum: so it’s not just in the commonwealth of pennsylvania, it’s really every environmental agency at the state level and at the federal level across the nation. they are not doing anything and everything that needs to be done to protect our natural resources, [and] in order to protect people’s health safety and the quality of their lives. a fundamental reason why that’s the case is because the laws in the united states of america, whether we’re talking local, state, or federal law, are not written to prevent environmental degradation or to protect people’s rights to a healthy environment. [these laws] are actually written to allow pollution. they just put in place a process to identify: how much, when, and where that pollution or environmental degradation will be allowed. the implications for community health, individual health, and individual and community quality of life isn’t given independent consideration in that legal process. it’s presumed that people’s right to a healthy environment or the concept of the right to a healthy environment will be protected by virtue of the fact that you’re going to regulate the how, when, and where environmental degradation takes place. it’s not really considered, legally, on its own as an overall concept that needs to be achieved. in some cases, such as the federal energy regulatory commission, regulatory capture is absolutely taking place. that is a federal agency responsible for reviewing and approving pipelines and fracking infrastructure projects. in over 30 years, ferc has only denied one pipeline project brought before its commissioners for approval. there are a handful of ways we can demonstrate that that agency really does suffer from regulatory capture. and i’m sure there are others depending on the state you’re talking about. however, broadly speaking you don’t have to have regulatory capture for agencies to day in and day out be making decisions that really side with industries ability to pollute, over the health and safety of people.

pf: you also talk about the overbearing power that industries and corporations have when it comes to forming policy in the united states. do you think the u.s. has reached a point in our democracy where it is dominated by oligarchical forces, especially after citizens united v. fec?

van rossum: i think we’ve reached a very problematic situation in the united states, were people’s rights, people’s needs, people’s voices really are subservient to the desires, goals, and greedy nature of industry. many politicians prioritize their own political careers and desires to advance and make money, over their obligation to protect the health and safety of people and the environmental resources we depend upon. i think that the u.s., for a long time, has been suffering from this reality that people are subservient to the goals and desires of industry, who [are able to] capture politicians. i do think that it is getting worse and worse every year. part of it is because of legal decisions such as citizens united that make it easier for industry to co-op with politicians and hold the power of the purse over their heads — if they want to continue their political careers. that being said, i think we’re at a tipping point, a moment in which the overreach by industry and self-serving politicians, is now blatantly obvious to an increasing number of people. no longer are people counting on their representatives to do the right thing and prioritize people’s needs over industry’s needs. people are now trying to find ways to hold government officials accountable. so while rallies, protests, and certainly voting are important ways to do that, i think that the passage of constitutional provisions to protect our environmental rights is a high priority way to hold government accountable for protecting people’s right to a health environment.

pf: can you tell us more about this constitutional approach to environmentalism and why that would be more constructive than our current legislative approach?

van rossum: so our constitutions, whether you’re talking about the state constitution or federal constitution, are above the law. so when you have a constitutional right, like the right of free speech, it’s a higher level of protection. government officials have to prove they are complying with the law but also have to prove they are complying with the constitution. in the case of the environment, if you have a situation where an industrial operator is spewing pollution into a waterway, and the people downstream are upset about it, these citizens may not be able to do anything because the operator has a permit to pollute backed by standing law. but if there’s a constitutional provision in place, the industrial operator and the government official stating that they complied with the law on the books is not good enough. [a constitutional right] is another layer of review and another obligation for protection. if a constitutional right to a healthy environment is violated, or a person believes their right has been violated, they can go to the courts to vindicate their right. they do not need a law written by a legislature… they can go straight to the courts.

pf: if a concerned citizen does notice environmental degradation occurring in their community, how should they go about defending their right to a clean and healthy environment?

van rossum: if you’re seeing pollution, you’re going to want to contact your local regulators. this might be your local town or the police if it’s a significant danger. all state agencies and federal agencies have pollution hotlines you can contact to request for a survey of damage that may be taking place. you may even have a constitutional issue if you live in pennsylvania or montana which do have constitutional protections for the environment. if your state doesn’t have a constitutional protection, then you’re really going to have to count on your regulatory agencies or state law. and if these avenues fail, that might just inspire a person to fight for a constitutional right for a clean environment within their state.

mary whipple’s day ends with throwing away bags of dust collected from her home in waltham township in lasalle county, illinois. “all that dust that i vacuum up in my bedroom every day,” she said. “you would not believe what i vacuum up from my carpet.”

since 2013, mary and her husband monty whipple have fought for their community as plaintiffs in the ongoing lawsuit to stop a proposed sand mine that would be built close to their farm just north of interstate 80 near the village of north utica. the case is now back in the trial court, where defendants will be required to answer the complaint, and “discovery” will begin. the case will go forward in the circuit court in bureau county, illinois.

mary whipple, now 66, was born in lasalle and lived in lasalle county her whole life. her parents, richard and irene dittmar, also lived there all their lives, and monty’s family resided on their nearby farm for generations as well. they’re fighting for their community and their legacy.

the story began when the north utica village board gave a permit to aramoni llc, a division of the investment firm woodland path in oak brook allowing a sand mine to take over property previously intended for commercial development. the land is very close to the homes of people living in waltham township, which immediately borders north utica. nobody expected a sand mine and waltham residents will be directly affected by the sand mine activities.

“living where we have been for many years, we’re very aware of what mining does,” mary said. “stripping riches off of the soil and the possible contaminations, truck traffic and hazards that go with mining? there’s a place for everything, and this isn’t the place to have it. that land is a god-given gift. you’re never going to be able to replace it.”

the lawsuit focuses on the prospective nuisance that will negatively affect the well-being and daily lives of the families — mostly farmers — living close to the site. even though lasalle county has many sand mines, none have been directly built on vast acres of prime farmland. the land had been sold, however, for commercial development.

understanding sand mining for fracking

fracking (known as hydraulic fracturing) is an oil and gas extraction technique that involves breaking up rock underground to release oil and natural gas deposits by pumping liquids into wells at high pressures. the chemicals used in the process and the risk of groundwater contamination are major concerns raised by fracking, according to ted auch at the fractracker alliance, an organization that makes energy-related data, especially on oil and gas issues, more accessible and actionable for the public. auch is the great lakes program coordinator of the fractracker alliance and teaches geochemistry and soil science at cleveland state university, in cleveland. he focuses his work on environmental justice issues from watershed resilience to sand mining.

the fracking mixture to break the rock contains water and sand, as well as other chemicals. north utica’s sand, with its consistent, even texture, meets the requirements to hold open rock fissures. with sand propping these human-made cracks open, the chemicals help oil or gas rise to the surface.

fracking isn’t new, but it’s growing. the u.s. energy information administration reports that, as of 2015, fracking produced two-thirds of natural gas in the u.s. although fracking may be talked about as a “not-my-problem, not-my-town” issue, active fracking exists in 34 states. given the quality of sand in lasalle county — already known as the “sand capital of the world” by the illinois geographic alliance – increased fracking means the targets on the back of rural citizens grow ever larger.

“i was struck by the scale, the size of the mines. the mines in lasalle county are so much bigger than the mines i’ve seen in other states,” auch said.

effects of sand mining

why are people such as the whipples fighting to keep sand mines away from their homes? because frack sand mining comes with serious potential consequences, as auch shows in his research.

“in lasalle county, illinois, they used to be able to see the stars,” he said. “and now, if you’re too close to these mines or floodlights, you can’t see the stars.”

silica sand, a carcinogen that easily floats from mines to neighboring land, is linked to a higher risk of lung cancer, according to an infographic by the fractracker alliance, citing mayo clinic doctors. already 30 to 50 times smaller than beach sand, silica dust can easily travel a half mile by air, and has been known to damage windshields as if the dust were sand paper.

the fractracker alliance links a higher risk of a host of other diseases to silica as well, from tuberculosis to lupus. rick coleman, another plaintiff who lives close to the prospective mine, has a 26-year-old daughter with a heart condition. the coleman’s family physician put it plainly: the day that sand mine opens, they can no longer live in their house, he said.

high volumes of water consumption and contamination threaten communities as well. a nearby mine’s permit in north utica township allowed use of 1.25 million gallons of water per day, and a further study of the water table shows that another mine may strain local water sources.

carcinogens and neurotoxins are part of the chemical cocktail pumped into the ground in the fracking process. damascus citizens for sustainability, based in new york, reports on the organization’s website that chemicals such as polyacrylamide, a flocculant used to clean sand, could break down to its more toxic form, acrylamide. “they definitely have some pretty nasty properties to them – cancer-causing properties,” said auch. according to the fractracker alliance, other chemicals such as arsenic and naphthalene (think mothballs) are already water-contamination culprits at other sand mining sites in the nation. not only the quantity, but also the quality, of the farmers’ wells are at risk.

those living near sand mines risk potential damage and loss of property value for their homes as well. “time and again you hear from neighbors who have seen cracks develop in their ceilings, in load-bearing walls, in their foundations,” said auch, who documented a case in detroit of a man living right next to a sand mine. “his house is basically uninsurable.”

current legal state

“they keep saying that sand mining is an industry,” mary whipple said. “agriculture is our industry. we create jobs. illinois’ top sources of income? agriculture and tourism.” the whipples and the other 11 plaintiffs make it clear that the mining industry has long established its presence. but the proposed sand mine in the current lawsuit will encroach on high-quality farmland and the 2.5 million people who visit starved rock state park each year.

the plaintiffs found hope when attorney and professor nancy loeb with the northwestern university pritzker school of law’s environmental advocacy clinic agreed to take on the case to challenge the planned mine. although their complaint was initially dismissed, an appeals court overturned that decision in march 2017 and the case will now go forward.

the legal controversy focuses on land rights. the north utica village board authorized the permit for aramoni llc to mine the land. the swath of land between the towns of lasalle and north utica was “unincorporated,” which means the land was not a part of either jurisdiction. however, north utica annexed the mine site, striking a deal to allow the mine to function while preventing mining trucks from entering downtown north utica and forcing the truck traffic onto the rural farming area north of interstate 80, according to court documents.

attorneys representing aramoni llc and north utica declined to comment because of the ongoing lawsuit. at the hearing to dismiss the plaintiffs’ complaint on july 9, 2015, ronald cope, representing aramoni llc, argued that the laws do, in fact, allow the company to have a mine on the proposed site.

as cited in the transcript of proceedings of the hearing, cope said, “so [the plaintiffs] have a burden of showing there is something unique about their area that is different than all the rest of the a-1 agricultural district, and there is something perhaps unique about this sand mine in its relationship to this unique area, whatever it is. and it’s not enough to allege that you live there or that you personally are going to be affected, because that’s true of every place.”

at the hearing, cope was dismissive of the prospective nuisance presented by the plaintiffs, saying that chemicals, truck traffic and other factors in question all apply to any sand mine. he said, “there might be — there may be a discharge of harmful chemicals. well, they use chemicals to some degree in the mining process, but that’s true of every mine. so what? someone is going to testify in court that the mines use chemicals? and then what? no more mines?” the court of appeals rejected that argument and stated that the mining operations can amount to a nuisance, and plaintiffs are entitled to prove their claims.

nancy loeb, who represented the plaintiffs at the hearing, continues to fight for the residents of waltham township, to prevent the prospective nuisance such as blasting noises, bright lights and harmful chemicals that will negatively affect the residents living in close proximity to the mine.

“the way the contract works, the effects [of the mine] are pushed off to people who can’t vote in [north] utica,” loeb said. “no activities in this agreement will be considered nuisance [under the mining permit granted by north utica]. blasting noise, trucks and bright lights can go on 24 hours a day, seven days a week, and they wouldn’t be considered nuisance.”

a lack of data also makes sand mining difficult to fight. without data on mining sites before operations begin, residents of rural areas like lasalle county have trouble proving the full impact of mining, from water use to waste disposal. the proprietary nature of mining means that companies aren’t willing to share data either. in an ohio mining operation, when auch and his team crunched the numbers, 25 percent of the water used couldn’t be accounted for. “how much [water] do they really need to process [the sand]? we’ve had a hard time figuring it out,” auch said.

but plaintiffs such as mary whipple will continue to stand up for their town because they believe it’s the right thing to do. “this is an illinois problem,” she said. “it’s everybody’s problem.”

looking forward

while it’s easy to live far away and brush this off, more people should understand what’s happening with sand mines, not only in rural illinois but also in other parts of the midwest, mary whipple said. citizens living farther from mines can make a difference too.

“if someone has a 401(k) or if they’re a member of an institutional union…make sure your investments align with your beliefs,” auch said. “money talks. and these companies are listening more and more to their investors.”

the farmers of waltham township will continue the fight to protect their community and hopes to succeed not only for themselves, but also for future generations, mary whipple said.

“this is our heritage,” she said. “i want to know that my grandson can have this one day.”