Happy Earth Day? 

Forget feel-good rallies and one-day recycling efforts. The 40th anniversary of the environmental movement's biggest celebration calls for more drastic measures.

More than 40 years ago, U.S. Sen. Gaylord Nelson, D-Wisconsin, announced his vision for what he called the "National Environmental Teach-In." Scintillating titles aside, Nelson was onto something. His idea was to raise awareness of the burgeoning environmental movement and address global conservation problems head-on. Spurred by Nelson's announcement, the New York Times even said the issue "may be on its way to eclipsing student discontent over the war in Vietnam."

On April 22, 1970, about seven months after Nelson first mentioned his plan—and after colleagues convinced the senator of a much better name—the inaugural Earth Day drew approximately 20 million Americans to events across the country. More importantly, organizers claim the event helped foster the creation of the U.S. Environmental Protection Agency and the passage of the Clean Air, Clean Water and Endangered Species acts. Not bad for a grassroots "teach-in."

Earth Day has surely grown over the past four decades. Earth Day Network, a nonprofit charged with broadening the environmental movement worldwide, boasts a global reach with more than 20,000 partners and organizations in 190 countries. According to the organization, more than 1 billion people participate in Earth Day activities now, making it the largest secular civic event in the world. In Missoula alone, we counted more than a dozen different events this year, ranging from special documentary screenings to lectures on eco-friendly products. It's easy to feel green these days.

That's all fine and good—heartwarming, even—but in the minds of many environmental advocates, Earth Day has outgrown the feel-good vibe of buying compact fluorescent light bulbs and reached a moment of apocalyptic recognition. Yeah, we're going there.

Whereas the Earth Day gatherings of Nelson's generation were able to claim remarkable progress on the issue—heck, they passed three different landmark acts under President Nixon—today's science makes the case that we've fallen dreadfully behind the curve. Just look out the window: 60 percent of the Helena National Forest is infested with mountain pine beetles, the state's springtime snowpack has declined 40 percent in the last half-century, and we may need to rename Glacier National Park considering its namesake could be gone as early as 2020. There's more: The most dramatic ecological event we experience in the Northern Rockies is wildfires, and a 2006 peer-reviewed study found a link between global warming and the frequency and severity of the fires. We haven't just fallen behind, some scientists believe we've flat-out dropped out of the game.

That said, we're not without hope. NASA's James Hansen, arguably the world's leading climate scientist, points out that the earth's natural systems absorb 43 percent of the world's global CO2 emissions, a phenomenal fact in and of itself. Even more remarkable is the fact that if we reduce emissions by more than 57 percent, the earth's natural systems will start to draw down atmospheric CO2 concentrations, heading us toward a cooler planet—think of it like taking a blanket off the globe. Look at it another way: We're currently at 391 parts per million (ppm) CO2 in the atmosphere, and that number rises a few points or so each year. If we get down to 350 ppm quickly, Hansen says we've more or less dodged the climate bullet.

That's an achievable goal. But to reach those numbers, there has to be a change in strategy, it has to happen quickly and it has to be more than your California transplant neighbor trading in her Land Rover for a Toyota Prius. Right here in Missoula, the stage is set for exactly the kind of change that this situation calls for—change in the courtroom, change in legislation, and change by not letting the current ways of doing business continue. And it's all happening right now.

Law

Favorable rulings

Climate change has its day in court

The Kyoto Protocol pact sunsets in 2012. Last year's United Nations climate change convention in Copenhagen is widely viewed as a failure. The prospects of U.S. Congress passing cap-and-trade legislation this year are daunting. If the United States has made any progress in fighting climate change, it's occurred in the courts.

"What's new and different—and what I think is really interesting—is attorneys making the argument that we need to take into consideration the impacts of climate change," says University of Montana Law Professor Elizabeth Kronk, "and judges saying, 'Yes, you're right.'"

Count U.S District Judge Donald Molloy of Missoula among the judges saying yes. Two of Molloy's recent decisions have considered the impacts of climate change.

click to enlarge Two of U.S District Judge Donald Molloy’s recent decisions have considered the impacts of climate change. “What’s new and different—and what I think is really interesting—is attorneys making the argument that we need to take into consideration the impacts of climate change,” says UM Law Professor Elizabeth Kronk, “and judges saying, ‘Yes, you’re right.’”
  • Two of U.S District Judge Donald Molloy’s recent decisions have considered the impacts of climate change. “What’s new and different—and what I think is really interesting—is attorneys making the argument that we need to take into consideration the impacts of climate change,” says UM Law Professor Elizabeth Kronk, “and judges saying, ‘Yes, you’re right.’”

Last fall, Molloy ordered the U.S. Fish & Wildlife Service (FWS) to return nearly 600 grizzly bears in and around Yellowstone National Park back to the endangered species list, in part because their food supply is shrinking due to climate change. He wrote that the agency failed to take into account scientific studies that make a connection between the decline of whitebark pine trees—the nuts of which grizzlies eat—and the deaths of grizzlies in Montana, Idaho and Wyoming.

"The identifiable best available science," Molloy wrote in his September 2009 ruing, "indicates that whitebark pines are expected to decline due to a variety of causes, including climate change, increased forest fires, the mountain pine beetle epidemic, and infection by white pine blister rust."

Experts say Molloy's ruling serves as a prominent example of attorneys successfully leveraging the Endangered Species Act to combat climate change.

"Numerous legal theories are being used to apply existing statutory authority to climate change," says Michael Gerrard, director of Columbia Law School's Center for Climate Change Law. "The Endangered Species Act is one of them. There are some theories under which the Endangered Species Act can be used to try to reduce greenhouse gas emissions. That would be a very indirect effect that most people don't hold out much hope for. However, there are much more successful efforts to use the statute to protect particular species and places that are especially vulnerable, and [Molloy's decision] fits in the second category."

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