April 8, 2014

Fairly Traceable

The Civilians’ artistic team has started interviewing other artists that address climate change in their work as part of an ongoing series.

Our Literary Associate, Amina Henry, recently interviewed playwright and current R&D member Mary Kathryn Nagle about her new play Fairly Traceable, which draws on her experiences as a student at Tulane during Hurricane Katrina and her work in environmental law. Here is a snippet from their fascinating discussion!

Playwright Mary Kathryn Nagle

AMINA: Does your show have a name yet?

MARY KATHRYN: Right now I’m calling it Fairly Traceable.

AMINA: Okay, Fairly Traceable. So, talk to me about how Fairly Traceable began, like, the seed of the idea?

MARY KATHRYN: I went to law school to study environmental law at Tulane and I happened to move there three weeks before Hurricane Katrina happened and so, as you can probably guess, Hurricane Katrina was a major life event.

And to see this community try to recover from such a major catastrophic event and being there to do environmental law, I got involved in a lot of cases that were targeted towards climate change.  And specifically there were a group of plaintiffs in Mississippi, some home owners, you know, close to the shore line, who had lost their homes and said, “Well, we know that the pollutants that cause climate change are greenhouse gases. We know the companies that make billions of dollars in profit off these pollutants, so they should compensate me for my home that I lost because they’re contributing to the problem that caused me to lose my home.”

So a lot of lawsuits started to be filed based off of that model and I was in law school when this was happening and I was very interested in how the legal system holds these polluters accountable. The court was saying, “We don’t even have jurisdiction to hear your claim, like, we’re not even gonna get to the motion, we’re not even gonna get to the merits of your case, we’re not even going to let you have discovery, you’re not gonna get to take depositions, you’re not gonna get to ask the defendants to produce documents, or the emails where they are showing what they’re doing to hide the true effects of their pollutants, because we don’t have jurisdiction to hear your claim.”

And the reason we don’t have jurisdiction to hear your claim is­–we go back to a 1992 decision called Lujan v. Defenders of Wildlife, it’s a Supreme Court decision that Scalia wrote where he sort of invented a new test. And  that for a federal court to have jurisdiction over a claim – because they can only hear cases where they have jurisdiction – the plaintiff’s injury has to be, quote unquote, ‘fairly traceable’ to the defendant’s conduct.

Now the words ‘fairly traceable’ are not in the Constitution. All that article 3 says is that the federal courts will have jurisdiction to hear cases or controversies, and that has been interpreted over the years by the Supreme Court to mean that you can’t come into the court and say, “Your Honor, you know, Amina might kill my child in ten years so you need to put her behind bars.” Or, “This company might steal this from me in twenty years so you need to do this now.” It has to be a case or controversy such that the court can adjudicate it.

What happened in the 70s was Congress passed seven or eight different environmental law statutes and all of a sudden environmental law was born. And there were several conservatives on the Supreme Court who freaked out and one of them was Justice Powell, and he authored opinions in ‘75 and ‘76 that basically said, whoa, whoa, whoa, we gotta do something with Article 3, Case or Controversy, to limit the number of people who can sue because they feel like the EPA isn’t regulating pollutants enough. Like we can’t just have any Joe Schmo off the street say, “Whoa, my community has been polluted too much,” because then everyone in the community is gonna get to sue.

So, ‘fairly traceable’ in the 1992 Lujan decision comes from language that Powell started to use in the 70s, and Scalia kind of sealed the deal in the early 90s and now that language is being used to prevent climate change plaintiffs from bringing law suits.

AMINA: What do you think theater can offer to environmental issues? Why not an essay? Why theater? Or performance?

MARY KATHRYN: I think theater is a very powerful tool in this instance. We’re losing in the courts. I think the only way to change – we need to win in the courts. I don’t think we’ll win in the courts until we change public sentiment. And the way to change public sentiment is the theater. And it doesn’t have to be exclusively the theater, it can be tv and film. It’s like, we’re all in this, but until we kind of come to that – right now it’s just something we don’t talk about. I mean, we don’t really talk about climate change, you know?

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