Category Archives: Politics

“Politics” & 8 Gutsy Kids

An Update on Florida’s Historic Youth Climate Lawsuit Reynolds v. State of Florida

South Florida and many other places all around this unique, fragile peninsula that is the State of Florida are at dire risk to becoming lost, of becoming extinct and inaccessible, as a result of man-made climate change and its resulting sea rise. Local municipalities are increasingly, openly now acknowledging this reality and their own limitations to save a growing portion of their communities by using words such as “retreat” to describe the reality of our future unless we move quickly to stop the fossil fuel use that’s at the heart of climate change. In fact, local cities, towns and counties all over Florida have begun to publicly discuss that they are fighting a losing battle without help from the State of Florida, America and the world beyond.

And yet, State leaders such as Governor DeSantis, Agriculture Commissioner Fried, CFO Patronis, Attorney General Moody do nothing more than play politics in a process that spins around and around without change while protecting the polluters that are causing and perpetuating the damage. Make no mistake, for generations Florida’s elected officials have been played by industries intent on protecting their profits and in the process use and sell fossil fuels that are the core cause of the problem and until this changes, the damage will only grow worse by the day until the day comes that millions can’t get to their homes, businesses or special places all around us because no one in power truly cared to demand change.

And so as to remove the very politics that are the problem, seven young “gutsy”, as my friend Dick Jacob’s likes to call us, friends of mine and I have done something ridiculous and remarkable by suing the State of Florida and its elected Cabinet.

Ridiculous because we can surely agree that children and young adults should not feel forced to fight so hard for their future and that of future generations by having to file a lawsuit against the very state they live in to demand that their government enforce laws designed to protect them and their environment.

Remarkable because generations of adults before us, much less too many in positions of power today, gladly extend their hands out to the polluters, their lobbyists and the money so as to play THE key role in perpetuating the problem. I mean how else can you explain someone, anyone, supporting the use of something so filthy, that smells so bad and that is so lethal to any living creature as petroleum rather than cry out for a better energy solution in a world that’s now filled with better energy solutions, unless it were greed and politics?

And yet, what does a Judge appointed by one of the all-time climate deniers ever, former governor/now US Senator Rick Scott, conclude when the state not surprisingly asks him to deny our lawsuit?

He suggests we need a political solution.

Of course the abate failure of Florida’s political system, its elected politicians corrupted by political donations and the army of fossil fuel energy and utility industry political lobbyists feverishly working to protect their clients are a large part of the reason why such a fragile place as Florida has such a dire problem. And yet that’s what Judge Carroll suggested we need. More of the same political B.S. that has caused the problem.

Needless to say my friends and I do not agree with the Judge’s view, nor will we allow it to slow our desire to fix the problem. When I first thought to pursue a solution through the court system I knew that the process would be a long one filled with many challenges but I also knew that the stakes were too important to not seek the learned help of our judiciary. I knew that I likely faced years, perhaps decades, of my life pursing a legal remedy, the changes that we need, and thus I remain as dedicated to the cause, perhaps more so, than ever before despite Judge Carroll’s opinion.

With that in mind, I’d like to give you an update on our recent Hearing and next steps; first in a brief video of my own thoughts followed by a guest blog from my friend Dick Jacobs, a Florida lawyer for more than 50 years who will eloquently detail why he feels that the Judge is wrong to think that this is a political issue (it’s not). I’ve ended the post with a video in which many of my co-plaintiff’s share their views and a few thought provoking questions I hope you will consider.

 

After a three-hour “Zoom” video-conference hearing, Judge Carroll said his decision was based on the fact that the kids were asking the court to solve our climate crisis, which is the responsibility of the legislature and the executive branch. Carroll said “This is not a matter for the court. I regret to have to tell you this. I don’t want anyone to thing I am diminishing what [the kids] concerns are. I think they’re legitimate.” The judge said he would write his ruling so that it is ripe for appeal. He wished the children luck.

The legal technicality underlying the Judge’s opinion is known as the “Political Question Doctrine,” which Black’s Law Dictionary defines as “A question that a court will not consider because it involves the exercise of discretionary power by the executive or legislative branch of government.”

Debates as to what the Constitution means, and whether or not there are “political questions,” are not something new. The debates have been around since the days of the Founders. Perhaps the most famous early controversy about the Court’s authority was between John Marshall, appointed as Chief Justice in 1801 by John Adams just before he left office, and our third President Thomas Jefferson (1801-1809). In the 1803 case of Marbury v. Madison, Marshall’s Court opined that the Supreme Court had the right to decide if federal or state laws violated the Constitution. Marbury and subsequent Marshall decisions (his Court decided more than 1,000 cases in his 35 years, with Marshall writing half of the opinions) firmly established the idea that the Federal judiciary system was independent and co-equal in responsibility to the executive and legislative branches. Jefferson disagreed with Marbury and the role of the Court, seeing it as less consequential. Jefferson’s idea was that the Court’s authority to overturn laws conflicted with the peoples’ right to rule. (Jefferson, however, was not faced with the politics of today’s Democracy of Dollars, where the influence of lobbyists, not the people, prevails.)

Over the years the debate about the role of the Supreme Court has continued. Archibald Cox wrote in 1967, in his The Warren Court (the Court when I was in law school, 1964-67):

What role should the judicial branch play in the government of American people? Should the court play an active, creative role in shaping our destiny, equal with the executive and legislative branches? Or should it be characterized by self-restraint, deferring to the legislative branch whenever there is room for policy judgment and leaving new departures to the initiative of others? Under Marshall the court staked an active role in government, building up the power of the federal judiciary in shaping the relationship between the nation and the states according to Marshall’s nationalism. … [In reaction to judicial activism], there developed the theory of judicial self-restraint with which the senior generation of lawyers was generally indoctrinated. The theory sprang from the soil of the old Jeffersonian philosophy…: ‘You must seek correction through the political process, for the judiciary to intervene would be a denial of self-government.’”

As Cox points out, when it comes to fundamental Constitutional, human rights, judicial restraint is too frequently a “no answer,” for the restraint “closes the political process to particular ideas or particular groups, or otherwise distorts its operation. Then the correction must come from outside and no violence is done to the principle of representative government if the court supplies the remedy.”

“Ideally, the federal judicial branch ought not to enlarge its own jurisdiction simply because Congress and the state governments failed to solve the problem confided in them….The ideal remedy is to reform the delinquents. But government is more pragmatic than ideal. In a practical world there is, and I suspect has to be, a good deal of play in the joints. If one arm of government cannot or will not solve an insistent problem, the pressure falls on another.”

Examples:

• Our Constitutional right to “privacy,” always important, but more important in this age of electronic intrusions, was found by the Warren Court in the “penumbra” of rights surrounding the Constitution, not in the Constitution itself. The late Justice Scalia has written that because the words aren’t in the Constitution, we have no Constitutional right of privacy. I am sure very few of us would agree with Scalia. I discuss the issue in detail in an earlier blog: Belief Checker.

• Florida’s Constitution, Article II, Section 7(b), adopted in 1996, provides: “Those in the Everglades Agricultural Area who cause water pollution within the Everglades Protection Area or the Everglades Agricultural Area shall be primarily responsible for paying the costs of the abatement of that pollution.” The Florida Supreme Court opined that the provision is not “self-executing” and requires legislative action to be enforceable. With the exception of a 2020 bill dealing with algae pollution of Florida’s waters, the Florida legislature has never acted, and taxpayers, not the polluters, are stuck with the cost.

• Floridians amended Florida’s Constitution to restore felons’ voting rights. The Florida legislature passed a law that prohibited voting by felons unless all their applicable court costs were first paid. The law was challenged in the Federal Court as being unconstitutional. The judge withheld action while the legislature was in session so that it would have time to act; when the legislature didn’t act, the judge ruled: “[T]his order holds that the State can condition voting on payment of fines and restitution that a person is able to pay but cannot condition voting on payment of amounts a person is unable to pay or on payment of taxes, even those labeled fees or costs.” The judge also said:

“Why is it that all the Republicans voted ‘yes’ and all the Democrats voted ‘no’? That is not a coincidence. It would be stunning if somebody told me that they did not realize that African-Americans tend to vote Democratic more than Republican.”

The judge did it right: he waited for legislative action; when none came, the political issue was subordinated to fundamental rights and the wish of the people, reflected in a Constitutional Amendment overwhelmingly approved.

The assumption of the Defendants in Reynolds v. State, the case of the 8 Gutsy Kids, is that even with the evidence presented about climate change and its harm and dangers to the Kids (essentially confirmed by the Judge in his remarks), the Legislature has the right to ignore the evidence, or decide that other matters weigh against addressing the evidence. That position assumes that our children have absolutely no fundamental or constitutional right to life and liberty – and to a climate system that is not polluted with the effects of CO2. From one of the Defendant’s briefs:

“Moreover, even with compelling evidence that there is anthropogenic climate change, the Legislature may decide that other matters, such as employment opportunities, resource development, or power generation, should be weighed against the evidence.”

After an intense study of the Political Question Doctrine, I conclude:

The political questions that should be addressed by our judicial system include at least individual rights that are Constitutional, fundamental, inherent to life itself, and are not addressed by, or are abused by, the legislature or executive branches.

How many deaths or cancer cases from CO2 pollution are permissible before a political question about our climate system is no longer a political question?

Nor should the legislature or executive branch be entitled to decide that it’s okay to continue to pollute our waters or soil with chemicals that destroy the ability of life to obtain clean water and food.

How many people are permitted to die or become diseased from lead poisoning before the right to pollute with lead poison is no longer a political question?

Nor should the legislature or executive branch be entitled to take action – or ignore taking action – that causes vast portions of the entire state to be submerged under rising seas.

How many people must lose their homes, their businesses or their lives – or how many communities must lose their tax base based on sunken lands, fleeing tourists, and flooded businesses that no longer operate – because of rising seas before rising seas is no longer a political question?

The fact that the Gutsy Kids claim to a stable climate system isn’t word-specific in the Constitution, or requires executive or legislative action to fill in the details of implementation, doesn’t mean a righteous claim to a stable climate system does not exist, or that the Court cannot act. Like the right to privacy, the unspecified rights to a stable climate system lie in implication of the words of the Constitution and, like privacy, are in its penumbra. The Court can act as it did in Brown V. Board of Education of Topeka, Kansas, where the Court took charge in declaring what the Constitution required and ordered the political branches to reform policies that had championed discriminatory education of black children and other minorities.

Either we have fundamental rights or we don’t. For those fundamental rights the legislature does not have the right to compromise or destroy or limit them; the Executive Branch does not have rule-making authority to deprive us of those rights. Those rights clearly have political implications but are not political questions which courts cannot hear and resolve when the legislature and executive branch are engaged in damaging action or inaction. They are absolute, essential for life itself.

Take Article II, Section 7(a) of the Florida Constitution: “It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise and for the conservation and protection of natural resources.”

Now, 7(a) is a statement of pure policy, and it obviously require legislative action. However, this policy speaks of “shall” – requiring positive action. That means something is to be done within the boundaries of its expressed concern by the Florida legislature; yet there has been totally inadequate legislative action. Should not the citizens of Florida, who enacted the Constitution for their benefit, have the right to petition the judiciary to order the legislative branch to perform its constitutional duties? Listen to the 3-minute video introducing this blog. That is a prime concern of the Gutsy Kids.

To breathe life into the Constitution, inaction – a “no” answer- should not be constitutional when the Constitution uses “shall.”

Inaction is anti-shall action and should not be permitted.

Jane Goodall’s statement, “We are each difference makers and we have to decide what kind of a difference we want to make” reminds me of the fact that doing nothing is a form of difference making.

There is no reason for the Court to hide behind a political question argument when faced with these sorts of questions about human rights. What is called for is action consistent with the mandate of the Constitution. Doing nothing is not Constitutionally permissible.

CLICK ON THE PHOTO BELOW TO LINK TO OUR 3-MINUTE VIDEO ABOUT WHAT EIGHT GUTSY KIDS ARE DOING AND WHY.

Dick Jacobs 

www.theglobalnaturalist.com

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Tomorrow, June 1st, my friends and I will get our first actual day in Court (albeit via zoom due to COVID-19) in our climate change lawsuit, Reynolds V. Florida, which we filed in April 2018. Since the suit was filed, the State and elected officials including the Governor, have done everything they can to have it delayed and dismissed. And yet again, that will be the point of Monday’s Hearing; the Judge will consider the state’s most recent request to dismiss our lawsuit which seeks to have the state enforce the laws that are already in place and is designed to protect the environment, including our precious atmosphere.

While our state government has let all of us down in protecting our climate, oceans and atmosphere, someone who has long supported me and my passion to fix the problem before it’s too late, someone who has never let me down, is my dear friend Dick Jacobs. Dick has posted guest blogs here at The Sink or Swim Project before and I am about to share another one with you that he wrote recently about the lawsuit. But before I do I want to make what is a very, deeply personal observation.

Dick, as you will read, is 89 and has been bravely fighting stage IV melanoma cancer for several years in what is, seriously, a fight for his life. Over the last year I’ve unfortunately had to learn a lot about cancer as my mother was diagnosed and then has been battling breast cancer. She has bravely and stoically navigated through dozens of doctor and hospital visits, decisions about chemotherapy, radiation and four surgeries. Whether you are 89 like Dick or 52 like my mom, cancer is, needless to say, a very serious matter.

And yet even at his age and dealing with such a critical issue, here is Dick, just as passionate about the need for our world to address our climate change crisis for future generations before it’s too late as are any of my friends and I who are the plaintiffs in this lawsuit. Talk about an “inspiration”, a word people sometimes use when referring to us kids for asking the court to make the state to do the right thing. Nah. If you want to learn about a real inspiration then you need to learn about Dick Jacobs. He’s a real inspiration. And a hero.

And you know what else? To those who say they can’t do anything to solve the climate crisis or are too old to care or some such thing, then I hope you will consider my friend Dick who is right in the middle of the fight, on the front lines, at nearly 90 years of age. He knows the stakes are high for future generations and is serious about wanting to leave the world he’s lived in for nearly nine decades in better shape for that future than it’s been during his life. And that’s what I want too. To fix the climate crisis before it’s too late so that kids in the future can enjoy the places that I love and cherish but that are at risk of disappearing from our fossil fuel use. No matter your age I sure do hope you will join us in the most important battle that my generation will ever face and if you don’t believe me then consider the wisdom that Dick offers…

These gutsy kids called out Florida officials on climate change | Column

They will have their day in court on Monday. A long-time attorney explains why they’ve sued.

The kids with Dick Jacobs on courthouse steps in Miami in April 2018. Learn more at ourchildrenstrust.org/florida. [Courtesy of Robin Loznak, Our Children's Trust]

The kids with Dick Jacobs on courthouse steps in Miami in April 2018. Learn more at ourchildrenstrust.org/florida. [Courtesy of Robin Loznak, Our Children’s Trust]

My name is Dick Jacobs. I’m 89 years old, mostly a retired business attorney. For the past four years I’ve been in the fight of my life battling stage IV melanoma cancer. But as tough as that fight is, there’s another life or death battle – one that is a far tougher, and more important than my bout with cancer – that’s inspired me to action.

It all started after more than four decades of venture travel, trekking over the seven continents and writing Wonderlust, which chronicled my treks and the lessons I learned about caring for our Earth, the only home we have. I became convinced that I had to devote myself to helping our Earth with its growing cancer.

Thus, I became involved with eight gutsy kids and their suit against Florida, its governor and its key officials. The kids’ lawsuit isn’t about money. Their lawsuit is about protecting the kids’ constitutional, and fundamental rights, sourced in ancient laws over 1,500 years old, to a stable climate, which is essential to life, liberty, property, and the pursuit of happiness.

The kids are represented by a bevy of pro-bono, top notch trial lawyers from the Panhandle to Miami. The team of lawyers originally included the late Sandy D’Alemberte. Sandy was President of the American Bar Association and both President of Florida State University and Dean of their law school. Sandy was known as “The Father of Florida’s constitutional law” and believed in the profound importance of this case and the rights of these kids to get their day in court, as do all the lawyers involved.

On April 16, 2018, when the initial complaint was filed in the Leon County Court, I sent a thank you message to the trial lawyers on our team. It said: “As I read the final draft of the complaint, before I go to Moffitt Cancer Center this morning for the next step in my cancer treatment, I could not help but reflect on something that may surprise you: I am a registered Republican. I have always been a registered Republican, ever since I voted for Eisenhower for President in 1952. Unfortunately, the political party I once cherished has distorted the meaning of ‘conservative,’ which is grounded in ‘conserve,’ which means to preserve and protect, not to exploit or destroy. Florida’s leadership has totally abandoned those fundamental ideals.”

The email ended with, “These gutsy children, and this great team of trial attorneys, will remind us all of that being conservative means to conserve, to care for the only home we will ever have for ourselves and our future generations. This effort will make a difference. Thank you all.”

These young people—and young people across the globe—know that their future depends on the actions we take right now. They understand there is a short window to avoid the worst impacts of climate change by transitioning to clean energy solutions. They know Florida needs a plan to end the fossil fuel energy system the state has perpetuated.

These kids are role models for us all. I’ve heard comments shaming their parents for using their kids as pawns, putting them up to the litigation. Nothing could be further from the truth. As we met with the kids, it became clear that the kids were genuinely worried about the impacts of climate change on their future and they weren’t being pushed into this by parents. An amazingly sharp group, the youngest was Levi, then 8 years old. Levi’s been on 60 Minutes. Delaney Reynolds, now a University of Miami student, has been a speaker on climate issues before the United Nations. Luxha Aliheligi Phillips, an articulate 14 year old when I met her, is now a climate refugee, having left Miami. She is not alone. And it’s predicted that 2.5 million more people will be leaving Miami in the not too distant future because of global warming and rising seas.

The kids deserve our support. Won’t you stand with them before it’s too late?

Dick Jacobs, senior counsel with Johnson Pope law firm, practiced law in Pinellas County for more than 50 years. Learn more about the kids and their lawsuit.

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WE DID IT!!!': Astronauts, proud Americans share their reactions ...

Congrats to the brave astronauts who blasted off from Florida today and that are headed towards the International Space Station in the first American launch in nearly ten years and our very first ever public/private manned flight. It was breathtaking to watch and inspiring to think about the fact that during my lifetime men and women will very likely land on Mars. Talk about a BIG day for science and for all of the good that humanity represents when we work together to accomplish something that’s bigger than any one of us or any one country is by itself. Bravo NASA and SpaceX.

Photos: Riots erupt in Minneapolis, other cities over death of ...

Back here on earth, sadly, we continue to learn that reality is not the same thing as reality television. On television one can gain fame with a silly phrase such as “you’re fired” but causes a deeply divided nation to slip ever deeper into darkness when our supposed leader Tweets “when the looting starts, the shooting starts.” It’s hard to imagine that a supposedly grown man in his 70’s would be so callous towards a suffering nation, much less need Twitter to make clear that such stupid comments only make things worse.

And speaking of making things worse, as wonderful as the launch was, it was terribly disappointing to watch the President and Vice President standing shoulder to shoulder, a mask or social distancing nowhere to be found, despite a deadly public health crisis raging all around us that has seen millions become sick, more than 100,000 American’s die and 40 Million people unemployed. It’s as if these supposed leaders don’t realize, or care, about reality and that what they do and say has an impact on our country and citizens.

How else can you explain a President who is threatening and mocking North Carolina’s Governor over whether or not the Republican Party will host it’s 2020 Convention in that state unless state public health officials allow them to pack 20,000 people into the convention? Who in their right mind would suggest that such a thing is a good idea in the midst of COVID-19 when every state and local agency, school district, and businesses both private and public struggle to implement social distancing policies to protect everyone and keep them a reasonable distance apart? And what’s their solution? Announce America’s departure from the World Health Organization in the midst of a health crisis. Brilliant.

America and the world deserve better than what our elected leaders in Washing are offering. We need new leaders and we need new ideas, a new direction. The George Floyd riots make it clear just how rightfully upset people are over the injustice of his death, but I also suspect that this uprising is at least somewhat related to people’s frustration with the direction of America in so many ways. And do you blame them (us)? By the day, our leaders are increasingly disconnected from reality and the sooner our country rises up in mass to demand better of ourselves, the better.

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