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?

November 6, 2012

Hurricane Sandy

For such a sweet name, Hurricane Sandy wasn’t one to play nice. Sandy wreaked havoc on much of the East Coast last Monday, and for many people things still aren’t quite back to normal. Subway lines in New York City are still being reopened little by little, and New Jersey- one of the hardest hit states- is slowly working to clean up the extensive damage Sandy left in her wake. Power outages and lack of heat and other utilities made it a rough week for many, and are still on-going issues for people living in New Jersey and some parts of New York City. But there may be a silver lining to this monster of a storm.

Hurricane Sandy has brought the discussion of climate change back into the political realm, and more importantly, back into the issues being debated in the current election (did you see the cover of Bloomberg Magazine this week?). This election season, climate change has been absent from the presidential debates with issues such as jobs and the economy taking precedence. Political pundits and opinionators have stepped up and spoken out on the matter bringing the issue to the forefront of current political discussions. However, some say that this new surge of political interest in climate change is a fleeting one. While scientists can confidently say that global warming contributed in some respects to Sandy’s devastating power, it is impossible to pin the entire cause of the storm on global warming.

Nevertheless, for most people climate change is becoming more real everyday- especially when they are first hand witnesses to mega storms like Sandy which are becoming more of the norm rather than the exception. HERE is a cool article about the climate modeling that allowed scientists and government forecasters to predict the path and intensity of the storm so well! HERE is another article from CNN that quotes some amazing scientists about climate change, the hurricane, and urban planning.

But not to fear! Even if Sandy doesn’t keep climate change on the political agenda for long, there are campaigns out there continually reminding the political minds that climate change is a concern to watch out for. Just check out this amazing campaign that’s working to illustrate the effects of climate change on the everyday lives of kids. It’s called the TRUST campaign and features videos of youth from across the country talking about how shifts in climate have directly affected their lives, and trying to bring attention to these issues.

If you’re interested in volunteering for hurricane relief efforts, here are some helpful resources for ways to get involved: Occupy Sandy, recovers.org

And here is a photo from the Atlantic. See lots more HERE. Our hearts go out to all those in need, and our thanks go out to all those who are out helping.

From the Atlantic, link to the article above. Robert Bryce walks with his wife, Marcia Bryce, through destruction from superstorm Sandy on Route 35 in Seaside Heights, New Jersey, on October 31, 2012. (AP Photo/Julio Cortez)


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