California & the Prudent Man Standard

Imagine the biggest rubber band EVER. Now imagine that it’s being stretched and pulled beyond what would seem reasonable to keep it from breaking. This hypothetically enormous rubber band, year by year, is getting yanked on, in fits and starts, which is taking it further away from its natural, resting state. Tauter and less stable by the moment, with little tears developing throughout the thing…this rubber band doesn’t look good. That’s California right now.

In fact, close your eyes and think about what’s going on throughout that state and then imagine yourself five or 10 years into the future (after that rubber band “breaks”). Wouldn’t you say, “Well, I should have seen THAT coming!” Of course you should have. And maybe you already do see it coming. Maybe you’re not sure what it is that’s coming, but the bad stuff is piling up, for sure. As humans, we’re wired to see patterns and we’re wired to see threats; however, in the case of what’s ailing California, the overarching cause, and make no mistake about it: there is just ONE cause, may be too abstract for our primitive brains to automatically identify.

Let’s just recap what is going on in California for those who may not know:

1) California is experiencing the worst drought on record, which may not be remedied by the coming El Nino weather pattern,

2) while also enduring what may be the worst wildfire season in the State’s history,

3) all of which leads to severe and long-lasting water shortages made worse by massive groundwater depletion;

4) which has resulted in the State actually sinking.

There’s even more I could list here, but you get the picture. And it’s not a pretty one. If I were a religious person, I’d say that there was some smiting or mini-Armageddon going down in the Golden State. But I’m not at all religious, and I can pin the blame on actual and real entities: our government and the fossil fuel industry. And I can also name what has caused the bulk of the problems, which will lead to much worse stuff happening down the road: climate change. And it’s entirely caused by humans.

Full disclosure: I was born and raised in California. I don’t live there now, but I will always, until the day I die, be a Californian. Most of the people and things I love and cherish are in California. My best and strongest memories and influences are from California. I’d like to end up there some day, but it’s not going to happen because California has changed, and not in a good way. And things aren’t going to get better any time soon. Only worse. When you look back at the list of stuff happening in California, you also have to factor in The Big One – and every Californian knows what that is and it really should be considered “background noise” behind all else: California is overdue for a major earthquake. As the FEMA director for Oregon, Washington, Idaho and Alaska, said, the operating assumption is that “everything west of Interstate 5 will be toast” after The Big One.

The Big One becomes more problematic and frightening when the “patient” is already on life support and when you factor in new scientific discoveries like the one about how climate change is actually affecting Earth’s gravity, or that the climate has an effect on volcanoes and other geologic processes (rather than the common assumption that it only works the other way around) and then, in the back of your mind, think about the state of California SINKING, that Big One seems more imminent. In fact, I’d say that those well-heeled Century City lawyers need to realign their law practices, and fast, because NOW is the time to make the parties responsible for this mess pay up. Once the shit hits the fan, no one will connect the dots and, if they do, it will be too little, too late.

So, there are two responsible parties: the US government and the fossil fuel industry. It’s almost like shooting fish in a barrel because a) they have both acknowledged the problem and b) admitted responsibility. It’s almost like they’re just daring someone to DO SOMETHING. Anything, at all. The groundwork has been laid so many times over that it’s almost funny. I take that back. It’s actually hilarious. But the joke is on all of us. The self-flagellation of the US government coupled with the mea culpas of the fossil fuel industry could fill a stadium. You know. Like the Louisiana Superdome in New Orleans that housed Hurricane Katrina victims.

Thousands of Hurricane Katrina survivors wait to be evacuated from the Superdome in New Orleans September 2, 2005. After five days of surviving Hurricane Katrina, New Orleans residents were finally evacuated from the sports stadium by authorities. REUTERS/Jason Reed
Thousands of Hurricane Katrina survivors wait to be evacuated from the Superdome in New Orleans September 2, 2005. After five days of surviving Hurricane Katrina, New Orleans residents were finally evacuated from the sports stadium by authorities. REUTERS/Jason Reed

Legal arguments could be made for human rights violations, violating the Constitution, environmental laws broken left, right and center…whatever. It’s like a smorgasbord of choices, or routes, for litigation. It doesn’t even take a creative mind. It just takes stamina and guts. Here’s one argument I read about recently in an incredible book called, “Revolution Justified: Why Only the Law Can Save Us Now,” by Roger Cox. He writes about an international legal principle called the Prudent Man Standard. I’ll briefly summarize a really important case cited by Cox revolving around an accident in Amsterdam back in the 1960’s. This seemingly minor mishap led to something called, “the Cellar Hatch Ruling” which best illustrates the thinking behind the Prudent Man Standard.

Basically, there was a man named Matthieu Duchateau who went into a dark pub in Amsterdam with his wife and a friend on a cold winter day on Thursday, February 23, 1961 to warm up and get a drink. Just prior to Duchateau’s arrival, a Coca-Cola delivery truck driver, named Mr. Sjouwerman, who had been to this pub many times before, pulled up to the rear of the building, ran in, opened a hatch in the floor that led to the basement (where the soda was to be delivered), propped it open, and ran back outside to his truck to get his beverage crates. The open hatch, by the way, was right in front of the public restroom. You probably see where this is going.

So, we have Mr. Duchateau coming into the building from outside where it’s daylight (into a dark and unfamiliar pub) and he runs back to use the restroom at which point he falls right down the open hole in the floor. He broke his leg (and probably never drank Coke again) and sued Sjouwerman and his employer, Coca-Cola for causing his injury. The Dutch Supreme Court decided that Coca-Cola was indeed responsible, having created a hazardous situation with the potential result being injury or damage to someone, thus laying down the concept of what became known as the Cellar Hatch Criteria, which is:

1) how likely is it that someone would fail to act with attentiveness and caution (in the case of the pub, how likely is it that someone would fail to see the open hatch on account of their own inattentiveness);

2) how great is the risk that will result in a hazardous situation;

3) how serious might the consequences of this hazardous situation be;

4) how cumbersome would it be (in this case, for the driver of the delivery truck) to take precautionary measures to avert the hazardous situation.

The Cellar Hatch Criteria became a legal standard by which a potentially responsible party’s behavior should be measured against how a prudent person would act (aka the Prudent Man Standard), assigning risks to their actions and not causing injury or risk to themselves or others. As Cox says, such criteria defines norms of reasonable social decency. Moreover, the precautions taken should be proportionate to the level, or scale, of damages or risks. Cox uses an example of balconies. He says that since the risk of injuries is high when you have a balcony without a railing, balconies are always required to have railings.

He goes on to say that, for example, the obligation to take reasonable and precautionary measures does not rest on a 100% likelihood of injury to others. The Prudent Man Standard obligates precautionary measures any time a risk is “sufficiently real.”

Both the US government (in this case, the State of California) and the fossil fuel industry are fully aware of the dangers of carbon emissions, with both fully aware of the sufficiently real risk they put us all in by allowing, perpetuating, and aggressively pursuing carbon extraction and usage. The EPA is not only authorized, but was legally obligated by the US Supreme Court in 2007 (see Massachusetts vs. EPA) to protect the public from the adverse effects of carbon pollution. In fact, the US Supreme Court went so far as to decide:

Under the clear terms of the Clean Air Act, EPA can avoid taking further action only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.”

Cox covers ALL the bases. He says that governments can be held liable for various dangers even if they did not cause them directly just by not taking precautionary measures to protect and notify citizens, such as not providing proper road maintenance (which might result in injury) or not alerting the public to prisoner escapes, bad weather events, (like hurricanes or tsunamis), or terrorist attacks. Or the looming decline and exhaustion of global oil supplies, which he likens to the fall of Rome on steroids (I’m paraphrasing). What? You haven’t heard much about the collapse of world order due to dwindling oil supplies? Exactly. Cox goes so far as to say:

“Society is not being adequately warned about climate change and the oil crunch, and governments are to blame. The very fact alone that governments are not fulfilling their cautionary duty makes them accountable for endangerment and, therefore, for violating the Prudent Man Standard. This failure to provide the public with information and warnings, as well as to take other precautionary measures such as pressuring hard for energy efficiency and emissionless energy, seems to be due at least in part to the fact that many public officials are wholly unaware of the climate and/or oil problem, or simply do not wish to delve into the subject. And so, general ignorance about the danger continues to predominate.”

And Cox says that in addition to inaction, the government is also responsible for the fact that the average person (known as the Prudent Man), is entirely unaware of the danger they are in (because they haven’t been suitably informed) caused by manmade climate change. This is an egregious crime in light of the substantial body of scientific and technical knowledge readily available to governments, who are the ones charged with protecting us from serious danger. In the end, governments are responsible for protective measures and technical alternatives (clean energy) which should have been deployed against such dangers decades ago.

There are so many ways this could go down. If only I were a lawyer or even a paralegal and I had even a little free time, I could do some real damage. And despite my shortcomings, even I managed to bring a case before the Office of the Prosecutor of the International Criminal Court in The Hague last year. Just me, with no legal experience, and I had a case number and everything. In the end, I didn’t get to the stage I’d hoped (against hope) for, but I’m not giving up. And that’s just ME. Why can’t someone who actually KNOWS what they’re doing do more?

And in case there ARE lawyers interested in such an endeavor but they don’t want to start from scratch, they don’t have to because not only has the Dutch Urgenda Foundation sued THEIR own government for inaction on climate change (and won), they’ve ALSO made all their documents publicly available for other countries to use. I don’t know. Maybe it’s just too easy. Not a big enough challenge or something. Maybe it’s a real “yawner” and that’s why no one has taken up the mantle except a bunch of kids who don’t know better.

I do have my suspicions why there aren’t more legal professionals even trying to do this. I spoke to quite a few heavyweight law professors and attorneys who work on environmental law while I was working on my petition to the ICC. A few of them even personally know the ICC staff, and one of them, a law professor who shall remain unnamed, actually oversees an organization here in the US which interacts with the ICC. He poo-pooed my overall goal, saying they’d never take it on. In fact, he never thought it would go as far it did. He dismissed my efforts like I was some starry-eyed freshman who dreams of changing the world during their first semester at junior college. Here’s what I think: I think that his “lawyer brain” clicked through all the obstacles, all the hours, all the foes who were better armed and financed…his mind saw stacks of documents, countless missed calls, sleepless nights, appeals, court dates, endless hours of “discovery,” and he just shut it down, mentally, and went back to the safety of what he knew he could achieve. I get that, I really do. It’s the same thing I hear from political pundits about Bernie Sanders when they tell me the reasons that it can’t work. They say it’s just a waste of time. They tell me, “Don’t be a dreamer. You’ll be wasting your vote.” It’s a wasted effort, a wasted dream. He’s got no chance. Yada yada. I could go on all day.

But kids don’t say that. Kids throw all in and hope for the best. In fact, they dare to expect the best. Which is why it’s kids who are suing the US government for their inaction on climate change.

I’d rather spend time with those brave kids any damn day, doing what’s right, but not what’s safe or easy. In fact, I’d rather sit (uncomfortably) cross-legged on a dirt floor with them instead of perched upon a plush leather desk chair in a Century City corner office, looking out at my expensive view of the smog.

Now you’ll have to excuse me. I have to go help set up the “Bernie Sanders for President” lemonade stand.