This essay was submitted to the PLN’s policy essay competition and placed in the Top 5. It responds to the question ‘What is the most important public interest law issue of this new decade?’
Written by Lily Raynes.
The era of ecological destruction ushered in by climate change threatens to upend the foundational principles of public law. The canary started singing thirty-one years ago and now it screams.[1] Atmospheric temperature increases bring with it accelerated natural disasters, prolonged droughts and a rising sea-level.[2] Simultaneously, an estimated quarter of the species on earth will likely be sentenced to extinction by the mid-century.[3] All of this set to pull the rug out from beneath the global food supply chain.[4] The ‘end of nature’ may have just arrived.[5] Woven into the fabric of this wicked problem is likely the largest scale of a global injustice the legal system has dealt with.[6] Those who are most vulnerable to the upheaval of earth’s atmosphere already sit across the developing world.[7] Natural disasters, food scarcity and national instability have collided together to create the largest refugee crisis since World War II, which will likely accelerate.[8]
Beyond this, the effects of climate change have reached across and begun tearing at the seams of cultural heritage.[9] The tangible rise in sea-level taking with it intangible connections to place. Interviews from Mortlock islands speak of experiencing a ‘deep sense of loss, or at least an expectation of inevitable looming loss of place of the home islands which form the very core of their identities’.[10] The destruction of our atmosphere is at its core an exploitation of our world, and those living within it. This forms the human consequence of climate change. The law can then emerge as a vehicle for correcting this injustice. The challenge for public law then lies in connecting this immense intangible loss to a legal framework capable of responding.
I Climate Litigation
There has been a steady uptick in climate change litigation which attempts to meet this insurmountable challenge.[11] This essay will now turn to and critique the current ethos of climate change litigation. Underpinning this litigation is the concept fossil fuel corporations account for producing nearly seventy percent of emissions.[12] Partnered with complacent governments across the world, there emerges a clear and identifiable set of wrong-doers.[13] Climate change litigation aims to mitigate the ‘wrong’ of climate change using legal frameworks.[14] The two key issues are firstly the framing of these losses as financial, and secondly, the regional scope of climate litigation.
A Framing the Finance
Climate litigation encompasses a broad range of actions. The most common seeks to frame climate change as damage caused by a wrong-doer, who is then liable for compensation caused by the damage.[15] This roots legal action within a financial framework, in which intangible distress and loss caused by climate change is converted into a financial penalty. These penalties need to encompass losses of culture, history and place. Furthermore, in climate litigation under consumer law, reimbursement can only be awarded to consumers at the detriment of any remedial award to the environment.[16] It is a difficult pursuit then, to translate these immense losses into a compensatory structure capable of affording justice to both environment and person. By seeking financial compensation, there is a missed opportunity to contextualise the broader loss. Reducing these experiences to a cost and benefits analysis of what the warming globe will cost us, loses sight of the human consequence.[17] The consequences of climate change are and will always be, human.
B A Regional Solution for a Global Problem
The second issue for climate litigation is it seeks to marry a global problem with a local solution. By using common law actions to redress climate change, litigation is often drawing on a legal framework designed to rectify private wrongs.[18] This is a natural extension of classic environmental litigation, which typically sought to rectify localised wrongs such as breaches by a logging company.[19] Therefore, judges in these cases are confined to considering the very narrow and particular issues put forward by those parties.[20] Climate change is a complex transnational problem with far-reaching consequences and contributors, this compels a concerted global response.[21]
The square peg of a transnational and temporal problem is then forced through the round hole of a regionalised legal framework. A notable difficulty for climate change litigation has been proving the defendant’s actions will cause specific harm to the plaintiffs, when that harm is yet to occur.[22] Even more so, has been proving the defendants particular conduct caused any specific harm, when the harm has been ongoing and dispersed across multiple networks of ‘wrong-doers’.[23] In the landmark case of Urgenda v The State of the Netherlands, the court rejected the argument that Dutch emissions were only a small fraction of global emissions, and thereby not liable.[24] This rejected ‘no net impact’ line of reasoning has since been approved by the Queensland Court of Appeal.[25] This is edging Australia towards a bitter legal precedent in which climate litigation will face the insurmountable challenge of overcoming the ‘but for’ test.[26] The central constraint for climate change litigation is it must utilise existing legal concepts to try and prompt action.[27] Therefore, it is necessary to now turn to the challenge for public law in redressing this injustice using a legal framework.
II To Litigate Is Human
At the heart of public law is dedication to reorienting our legal frameworks toward justice. The strongest tool in the possession of the law are legally enshrined human rights. Human rights serve as the law’s highest condemnation of exploitation and destruction.[28] It enables the law to reach beyond the technical constraints of legal frameworks, toward mosaic concepts of human dignity and rights to life. With this in mind, climate change and the immensity of the loss it entails, should be contextualised as a human rights issue. Gage posits climate change is already within the human rights framework because a reality with a healthy global atmosphere forms the precursor to the exercise of any other right.[29] Environmental, public, private, and Indigenous rights are all dependent on the continued health of our planet.[30] Furthermore, Zellentin argues we have a right to our social bases of self-respect, therefore cultural loss through climate change already enlivens an injustice.[31] By imbuing climate change litigation with a firm sense of the human consequences, it begins to communicate a desperately needed sense of moral urgency.[32] Climate change is an issue that must stand beyond the ‘normal clatter and noise of day-to-day politics and to demand attention from our best selves’. [33]
The issue of climate change in public law in Australia already runs corollary to an ongoing debate about the merits of incorporating stronger recognition for human rights and, consequently, environmental management, into our Constitution.
Nations abroad have demonstrated that having stronger constitutional protections in place for human and environmental rights, subsequently affords lawyers a stronger scope in arguing for rights to life under climate change.[34]
III Onwards
It is easy to face this future and feel overwhelmed by inaction, or by submitting a pedantically critical essay to a competition. But within this criticism is a desire to push toward building the ‘still possible future’.[35] Integral to this is picking up and piecing back together fragments of justice. The most important issue for public law in the new decade will be centring the human consequences of climate change beyond jilted technical frameworks, toward the immense human rights issue it presents. Any lawyer with an eye turned toward a bill of rights will happily tell you this path is fraught with complexity.
How do we conceive and enshrine a future under climate change, while being cognate that right now the most vulnerable will be revictimized by increased weather instability and food insecurity. How do we continue to turn our mind to and incorporate traditional land management practices, and prioritize these voices from the past and into the future. It is obviously, not the easy way. It involves extensive self-examination and tinkering with how the law functions at its core, and as much as law school would like to have you think otherwise, a lot of subjective engagement with the laws purpose. But it is through this process, shaving and sculpting one brick at a time, a future for public interest law can be built in the new decade. Sanctifying the values which underpin it the most.
Footnotes
[1] Sebastien Duyck, ‘Which Canary in the Coalmine? The Arctic in the International Climate Change Regime’ (2012) 4(1) The Yearbook of Polar Law 583, 583.
[2] IPCC, Climate Change and Land: An IPCC special report on climate change, desertification, land degradation, sustainable land management, food security, and greenhouse gas fluxes in terrestrial ecosystems (Report, 2020) A.2.
[3] Chris D. Thomas, ‘Extinction Risk from ClimateChange’ (2004) 427(6970) Nature 145, 145.
[4] IPCC (n 2) A.2.
[5] Bill McKibben, The End of Nature (New York, Random House, 1989).
[6] This refers to numerical scale, it is clear injustices of great depth have been fought and overcome for millennia by groups fighting for everything while armed with nothing.
[7] IPCC, Climate Change 2001: Synthesis Report (Report, 2001) 68.
[8] OCHA-IDMC, Monitoring Disaster Displacement in the Context of Climate Change. Findings of a Study by the United Nations Office for the Coordination of Humanitarian Affairs and the Internal Displacement Monitoring Center (Report, 2009).
[9] Hee-Eun Kim, ‘Changing Climate, Changing Culture: Adding the Climate Change Dimension to the Protection of Intangible Cultural Heritage’ (2011) 18(3) International Journal of Cultural Property 259, 277.
[10] Rosita Henry and William Jeffrey, ‘Waterworld: The heritage dimensions of ‘climate change’ in the Pacific’ (2008) 21(1) Historic Environment 12, 13.
[11] Theodore Okonkwo, ‘Protecting the Environment and People from Climate Change through Climate Change Litigation’ (2017) 10(5) Journal of Politics and Law 66, 66.
[12] Ibid 68.
[13] Ibid.
[14] Ibid 67.
[15] Ibid 72.
[16] Ibid 68.
[17] Amy Sinden, ‘Climate Change and Human Rights’ (2007) 27(2) Journal of Land, Resources and Environmental Law 255, 271.
[18] Alexandra B. Klass, ‘Tort Experiments in the Laboratories of Democracy’ (2009) 50 William and Mary Law Review 1505, 1508.
[19] Hon Justice Rachel Pepper, ‘Climate Change Litigation: A comparison between current Australian and International Jurisprudence’ (2017) 13(3) Judicial Review: Selected Conference Papers: Journal of the Judicial Commission of New South Wales 329, 329.
[20] Stephen. M. Johnson, ‘From Climate Change and Hurricanes to Ecological Nuisances: Common Law Remedies for Public Law Failures’ (2011) 27(3) Georgia State University Law Review 565, 571.
[21] Pepper (n 19) 330.
[22] Johnson (n 20) 601.
[23] Ibid 602.
[24] Urgenda Foundation v The Netherland [2015] HAZA C/09/00456689 at 4.79.
[25] Coast and Country Assoc of Qld Inc v Smith [2016] QCA 242.
[27] Kane Bennett, ‘Australian climate change litigation: Assessing the impact of carbon emissions’ (2016) 33(6) Environmental and Planning Law Journal 538, 544.
[28] Pepper (n 19) 343.
[29] Sinden (n 17) 258.
[30] Andrew Gage, ‘Climate Change Litigation and the Public Right to a Healthy Atmosphere’ (2013) 24(3) Journal of Environmental Law and Practice 257, 272.
[31] Ibid 272.
[32] Alexa Zellentin, ‘Climate justice, small island developing states and cultural loss’ (2015) 133(3) Climate Change 491, 493.
[33] Sinden (n 17) 271.
[34] Ibid.
[35] Pepper (n 19) 343.
[36] Natalie Osborne, ‘For still possible cities: A politics of failure for the politically depressed’ (2019) 50(2) Australian Geographer 145, 148.
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