The Bible Tells Me What?

Posted on March 26, 2018 by Dennis M. Toft

Over the past few months the intersection of religious principles and environmental protection has become a topic of public dialogue.   Religious beliefs have also been invoked in recent cases seeking to block pipeline projects or protect endangered species.  Even more recently, the press has reported on statements by EPA Administrator Scott Pruitt which suggest that religious freedom could now form the basis of challenging permit denials.  Are we at the point where environmental lawyers need to study religion in order to represent their clients?

The recent public discourse about the intersection of environmental protection and religious principles started in 2015 when Pope Francis published his encyclical Laudato Si. The Pope explained that protection of the environment is part of God’s plan.  In this context the Pope argued that it is important to address global warming because of its impact on the planet and disproportionate effect on the poor and disadvantaged.

EPA Administrator Pruitt is reported to have a different view.   This is based upon a literal reading of the Book of Genesis.  It says God has given humans dominion over the earth, and the belief that as a result humankind has the right to manage and cultivate the earth’s resources for its benefit.   This New Republic explained these differing viewpoints in an article by Emily Atkin entitled “Scott Pruitt vs. The Pope” dated February 27, 2018.

The religious principles proffered by Pope Francis are reflected in legal theories advanced in a number of recent cases.  For instance in Adorers of the Blood of Christ v. Federal Energy Regulatory Commission  (EDPA, Case No 5:17-cv-03163 JLS)  a religious order challenged FERC’s approval of a pipeline crossing the order’s  property by asserting that the property is sacred to their beliefs and that the pipeline would contribute to global warming.  Similarly, in Crowe Indian Tribe v. Zinke (D Mont. Case No. 9:17-cv-00089DLC-JCL) the plaintiffs challenged a regulation delisting the Yellowstone Grizzly Bear as an endangered species asserting the importance of that species to the practice of their religion.  These cases assert claims under the Religious Freedom Restoration Act, 42 U.S.C.  2000bb.  This statute prohibits the government from substantially burdening a person’s exercise of religion unless it furthers a compelling governmental interest and is the least restrictive means of furthering that interest.  Another example is Standing Rock Sioux Tribe v. Army Corps of Engineers, 239 F.Supp. 3d 77 (D.D.C. 2017).  In that decision, the Court rejected a request for an injunction seeking to block construction of a pipeline across a lake, finding that construction of the pipeline did not create a substantial burden on the plaintiffs’ exercise of their religious beliefs.

Looking at the legal theory in these cases and invoking the religious views attributed to EPA Administrator Pruitt, is it possible that someone could challenge the denial of a permit on the grounds that it imposes a substantial burden on their religious belief that natural resources are subject to human dominion and are there to be exploited? While case law to date would not seem to support such a theory, in 2018 it seems less farfetched than in the past.

POLITICS, POPES AND POLLUTION

Posted on June 1, 2015 by Charles F. Becker

Vatican officials have confirmed that a Papal encyclical will be released in June.  The encyclical, which is the official proclamation of the Catholic church on a particular issue, will address the environment.  According to the Vatican’s spokesman, Frederico Lombardi, Pope Francis believes that the proclamation will act as a “moral barometer” and will help “shape the discussion” at the climate summit in Paris (COP21) scheduled to be held at the end of 2015.

Although the encyclical has not yet been released, there is little question that it will take a strong position that environmental protection is a moral and religious issue and will likely acknowledge that climate change is, in fact, caused by human activity.  As a precursor to the publication, a Vatican meeting was held on climate, energy and ecology.  The meeting was a collective of religious leaders, environmentalists, and scientists, among others.  On April 28, 2015, the group issued the “Declaration of Religious Leaders, Political Leaders, Business Leaders, Scientists and Development Practitioners:”

We, the undersigned, have assembled at the Pontifical Academies of Sciences and Social Sciences to address the challenges of human-induced climate change, extreme poverty, and social marginalization, including human trafficking, in the context of sustainable development. . . .  We have considered the overwhelming scientific evidence regarding human-induced climate change, the loss of biodiversity, and the vulnerabilities of the poor to economic, social, and environmental shocks.

In the face of the emergencies of human-induced climate change, social exclusion, and extreme poverty, we join together to declare that:

Human-induced climate change is a scientific reality, and its decisive mitigation is a moral and religious imperative for humanity; . . .

The world should take note that the climate summit in Paris later this year (COP21) may be the last effective opportunity to negotiate arrangements that keep human-induced warming below 2-degrees C, and aim to stay well below 2-degree C for safety, yet the current trajectory may well reach a devastating 4-degrees C or higher; . . .

Given the timing of the Vatican meeting, it seems probable that Pope Francis’s upcoming encyclical, with its teachings for 1.2 billion Roman Catholics in the world, will have a significant impact.  While many will be excited to see its contents, there are some that will likely be less than thrilled – including more than a few of the 40 or 50 candidates for President (I may have added a few of the fringe candidates) as well as some members of Congress.  Whether the candidate is the extreme “climate-change-does-not-exist” or the more moderate “environmental-regulation-is-not-a-pressing-issue,” the encyclical is going to be a real problem.  Recent polling indicates, for example, that environmental issues do not show up in the top ten priorities for Republican voters.  But is any politician really going to disregard the Pope?  And since 25% of the members of Congress identify as Catholic Republicans, the presidential candidates are not going to be alone in their dilemma. 

I make a point of this only because I live in Iowa and the migration of presidential candidates has already begun.  You can’t turn right at a corner without hitting a candidate, and between now and February 2nd (the Iowa caucuses) it is going to get much, much worse.  If the Vatican could just wait until February 3rd or 4th, all of Iowa would be greatly appreciative.  New Hampshire might not be thrilled, but that’s a risk we would be willing to take. 

Religion, to varying degrees based on the country, has always had an impact on politics.  In the United States, history and the Constitution have tried to separate them, but with little success.  One thing is certain, at least during the last six months of 2015, we are all going to hear a lot more about environmental imperatives, moral obligations and political priorities.