Extreme weather events, such as heatwaves, will become increasingly common in the future, as our climate continues to warm. More and more scientific research is being carried in this field, due to the potential devastating consequences to humans as a result of more frequent and more severe heatwaves. One recently published paper within this field has found that, unless greenhouse gas emissions are significantly curbed, life-threatening and extreme heatwaves will be observed in the Middle East and North Africa (MENA), and could be a significant driver for mass migration to cooler northern regions in the future.
The study, “Business-as-usual will lead to super and ultra-extreme heatwaves in the Middle East and North Africa” published in the journal npj Climate and Atmospheric Science, used a multi-model ensemble of climate projections, and then predicted future heatwaves and characterised them with the Heat Wave Magnitude Index. The results indicate that, under a business-as-usual pathway (greenhouse gas emissions continue to increase at present day rates) unprecedented super- and ultra-extreme heatwaves will develop in MENA in the second half of this century. The study predicts the events will involve temperatures exceeding 56 °C and will last for several weeks at a time, leading to life-threatening conditions for humans. In addition, by the end of the century, about half of the MENA population could be exposed to these ultra-extreme heatwaves on an annual basis. This potential intensification of heatwaves in MENA could lead to increased migration from the region to cooler, more northern places.
The authors suggest that immediate and drastic action on climate change, such as reducing greenhouse gas emissions, are necessary to prevent such extreme heatwave events from occurring. In addition, they also suggest that cities in the area will have to develop adaptation solutions to cope with the greater prevalence and severity of heatwaves in the area.
Sources
George Zittis, Panos Hadjinicolaou, Mansour Almazroui, Edoardo Bucchignani, Fatima Driouech, Khalid El Rhaz, Levent Kurnaz, Grigory Nikulin, Athanasios Ntoumos, Tugba Ozturk, Yiannis Proestos, Georgiy Stenchikov, Rashyd Zaaboul, Jos Lelieveld. Business-as-usual will lead to super and ultra-extreme heatwaves in the Middle East and North Africa. npj Climate and Atmospheric Science, 2021; 4 (1) DOI: 10.1038/s41612-021-00178-7
The seemingly insuperable nature of the boundaries between human and non- human beings carried throughout bodies of literary work evokes issues regarding the substantiality of land and animal ethics. The projection of human characteristics onto the natural world is exemplified through both fictional and authentic accounts of anthropological consciousness in relation to non-human sentience. In order to redefine the divisions between humans and the environment, it is imperative to transgress egocentric perceptions of consciousness. The theoretical framework presented in Aldo Leopold’s essay, Land Ethic, manifests a rich representation of the deep interconnections between human ideology and environmental degradation; while J.M. Coetzee’s novella, The Lives of Animals, materializes the necessity of surpassing conventional notions of consciousness to establish climate responsibility. Each of these works posits the significance of advancing ethical thought beyond the limited scope of human egoism, and illustrates the possibility of bridging the divide between human and non-human realms through the emergence of an ecological conscience.
I. The Fragmentation of Anthropocentric Philosophy
Coetzee offers an earnest interrogation of the partitions between human and animal subjectivity in order to challenge the traditional discourse surrounding collective ethics. He positions novelist Elizabeth Costello as the mouthpiece that serves to reassess anthropocentric views of morality. Her main role is to reframe rationalist theology, and dissolve the ethical grounds sustaining human-centric values. Costello suggests that the foundation of humanist philosophy rests upon the use of reason as the main differentiator between human and non-human sentience. She proposes a critique of common modalities of thinking, and argues that principles of reason do not afford humans a privilege of superiority. In a lecture on the complexity of non-human rights, she tells her listeners that
“Reason looks suspiciously to me like the being of human thought; worse than that, like the being of one tendency in human thought. Reason is the being of a certain spectrum of human thinking” 1
The idea that reason itself is a product of the mind serves to destabilize its use as a guiding compass. The reduction of reason to the abstract sphere of a “spectrum” implicitly diminishes its intellectual significance. An inversion of rationalist theory may reveal that the fundamentals of reasoning are flawed in nature, and can be transformed to encapsulate logic beyond our own self- interest. Jan-Harm de Villiers’s research on animals’ “literary voice” touches on the tendency to use reason to support the notion of humanist superiority. He remarks on Costello’s awareness of the human ability to recognize animal suffering, whilst remaining morally passive to one’s own involvement in it.
“Costello locates the root of this passivity in the rationalist tradition’s privileging use of reason above all other human faculties as a capacity or criterion to justify subjugation” 2
It may be possible to rupture one’s personal indifference through the engagement of discourse that falls outside of the realm of traditional thought. In order to disrupt the framework upholding hierarchical structure, it becomes necessary to interact with the concept of suffering. The idea of mental and bodily suffering incurred by human action may serve to provoke a profound change in our views of land ethics. The question of whether or not humans can cultivate a sense of awareness strong enough to manifest an ecological conscience comes to the forefront of this discussion.
Redirecting Humanist Thought
The basis of rational thought must rest on the premise that humans and the natural world are deeply interconnected, rather than divided. In his essay, Land Ethic, author Aldo Leoplod evokes the significance of developing moral conscientiousness of the environment. He suggests that a collective disconnection to the land results in a lack of ethical regard for ecological systems, and creates stagnancy within the conservation movement. He posits that
“Obligations have no meaning without conscience, and the problem we face is the extension of the social conscience from people to land. No important change in ethics was ever accomplished without an internal change in our intellectual emphasis, loyalties, affections, and convictions.” 3
The notion that change must take place on a more intimate level conjures both an individual and collective call to action. A shift in “intellectual emphasis” must occur in order to bridge the boundaries between sustainable living and human indifference. Although many view the natural world through a hierarchical lens, it is important to acknowledge human reliance on the land. In order to materialize ethical consideration for the land, one must experience its complexity through personal immersion. In her essay, Compassionate Coexistence, Uta Maria Jürgens elaborates on the importance of recognizing the interdependent relationship between humans and the natural world. Her research on environmental psychology explains that “the one-on-one encounter with particular animals, plants, and landscapes that, collectively, constitute Nature is the mediating link between personal responsibility and actual land-ethical conduct” 4 In developing a degree of affinity with the land, one can begin to comprehend their own moral responsibility to care for it. This approach requires a massive transition in the way humans view non-human subjectivity. Jürgens comments on the significance of “personalizing” other beings: respecting their inherent right to exist and be perceived as autonomous. In order to mobilize moral responsibility for the land, it is necessary to establish non-human ecosystems as independent entities, and foster intentional relationships with the natural world. A fragmentation of the divisions between human and animal sentience may serve to catalyze this shift in thought.
II. The Core of Environmental Disconnection
The idea that animals possess consciousness must be integrated into social thought in order to destabilize the psychological boundaries that disconnect humans from the natural world. Coetzee pushes deeper into dissolving these philosophical demarcations, and offers the use of one’s “sympathetic imagination” as a conduit for engaging with the state of another being. Costello suggests that “to be alive is to be a living soul. An animal, and we are all animals, is an embodied soul.” 5 Through the use of the mind, humans can immerse in the experience of inhabiting the body of another. This practice allows for recognition of the idea that humans do not possess authority over our animal counterparts. She argues that there is “no limit to the extent to which we can think ourselves into the being of another.” 6 The “sensation of being” in itself constitutes a fundamental part of all life. The cognitive awareness of bodily existence pertains to both humans and animals, and can be seen as the equalizing agent of the two realms. This notion serves to diminish justifications for manipulating the environment on the basis of humanist superiority. It emphasizes that human intellect does not exemplify consciousness, and acts to invalidate the bounds between human and non-human ecosystems.
The main purpose of Costello’s claim to the power of embodiment is to engage with the concept of non-human consciousness, and unravel deeply-rooted rationalizations for environmental disconnection. The absence of an ecological conscience creates invisible barriers between human and non-human realms, resulting in chronic detachment from the land. Simultaneously, this separation generates a lack of ethical regard for natural biomes. Although the scarcity of land ethics may seem trivial, it translates to the root of various inadequacies embedded in environmental policy and regulation. This generational dysfunction manifests into major ecosystem degradation, involving extreme weather events and climate-induced displacement on a global scale. In her report The Silent Violence of Climate Change, María José Méndez expands upon this issue, and draws attention to the lack of legal protections currently in place for those affected by environmental disaster. She touches on the unobtrusive nature of climate suffering, and the way in which it prevents exceedingly vulnerable populations from receiving proper rights and recognition. Her field work exhibits that “asylum seekers must parade the psychological and physical wounds that scar their bodies or those of their loved ones, and even then, they are not guaranteed immigration relief.” 7 In order to be considered a refugee, an individual must supply compelling proof of imminent violence or persecution in their homeland.
Concurrently, there remains no official language that effectively defines and protects environmental migrants under international refugee law. The existing policies neglect the adversity of those experiencing devastating financial and agricultural losses due to the prolonged effects of climate change, such as rising sea levels and extensive drought. Méndez remarks on the sensationalist quality of modern thinking that drives legal policy, and inherently subdues less explicit forms of suffering. She finds that “asylum policy, like much mainstream news coverage, favors stories of brutal death or injury and suppresses the economic and ecological harms that also drive people to leave home.” 8 It can become immensely difficult to provide evidence of the acute rationale for climate migration, as these issues have developed and worsened over decades of time. The rise in population displacement and reduced human mobility will continue to intensify with increased environmental degradation.
Collective Outlook
The need for greater accountability and awareness falls on both private corporations and governmental institutions alike. In order to advance ecological responsibility, it is necessary to create a deeper sense of collective obligation to the environment, and those existing within biotically fragile regions. This idea reinvites Leopold’s conceptualization of a framework that prioritizes deeper commitment to the land, and favors an internal shift in our ways of thinking. Leopold brings us back to the assertion that ethical management of the environment must “reflect the existence of an ecological conscience, and this in turn reflects a conviction of individual responsibility for the health of the land.” 9 It is essential to reinvent global protection efforts in order to preserve the existence of both human and non-human realms. Through the facilitation of enhanced climate awareness, it is possible to redefine our connection to the natural world.
The evolution of environmental progress rests on the prospect of bridging the divide between human and non-human ecosystems. It is crucial to advance beyond egocentric thought in order to transgress socially constructed boundaries of consciousness, and compose a stronger sense of responsibility for the land. In developing an ecological conscience, we can generate a call for change to prevent ecosystem collapse, and ameliorate the health of both human and non-human environments.
Rachel Aronoff recently graduated from UC Santa Barbara with a degree in English, and a specialization in Literature and the Environment. She is also certified in health and wellness coaching, personal training, and in the process of becoming a yoga instructor.
1. Coetzee, J M, and Amy Gutmann. The Lives of Animals. Princeton, N.J: Princeton University Press, 2001. Print.
2. Villiers, J. H. (2019). Prolegomenon on the Role of the Polyphonic Novel for (Animal) Law: J.M. Coetzee’s The Lives of Animals, the Voice of Refusal, and the Subversive Performativity of the Novel. Law & Literature, 31(3), 2019.
3. Leopold, Aldo. A Sand County Almanac, and Sketches Here and There. New York: Oxford Univ. Press, 1949. Print.
4. Jürgens, Uta Maria. “Compassionate Coexistence: Personizing the Land in Aldo Leopold’s Land-Ethic.” Sept. 2014. Journal of Evolution & Technology, vol. 24, no. 3.
5. Coetzee, The Lives of Animals, 33.
6. Coetzee, The Lives of Animals, 35
7. Méndez, M. J. (2020). The Silent Violence of Climate Change in Honduras. In NACLAReport on the Americas (Vol. 52, Issue 4, pp. 436–441).
8. Méndez, The Silent Violence of Climate Change in Honduras. (Vol. 52, Issue 4, pp. 436–441).
9. Leopold, A Sand County Almanac, and Sketches Here and There.
Migration north to the USA from Central America has been driven over the past by many factors including government corruption, high levels of poverty, and violence. However, over the past few months, another factor has caused an increase in the number of people migrating north: hurricanes.
In November 2020, two hurricanes made landfall within two weeks, causing devastation across Nicaragua, Honduras, and Guatemala. Hurricanes Eta and Iota brought flash flooding and landslides to these regions, and resulted in more than 200 deaths and another 5.3 million in need of assistance, according to estimates by Unicef. The Covid-19 pandemic had already left these regions in economic downturn, and the destruction the hurricanes have brought have only exacerbated issues created by the pandemic. Severe damage has been caused to homes and hospitals, resulting in increasing the transmission of COVID-19.
Recovery in these regions has been slow since the hurricanes, living conditions and access to services and income have declined. More people have been pushed into poverty and children are likely to become malnourished, as agricultural communities have been hit and damaged by the storms. These factors are helping push migrants out of their home countries, and a change of administration in the US has made the move north more attractive, due to Biden’s more humane approach to migration. We can expect to see cases like these becoming more frequent in the future, as climate change will make extreme weather events, such as hurricanes, more commonplace and more intense.
26 March 2021 – conducted by Earth Refuge Correspondent Aubrey Calaway
Native climate justice organizer Ruth Miller discusses her work towards an indigenized just transition amidst urgent threats to her people and land. She frames this struggle within the historical context of colonial violence and forced settlement of native Alaskan communities, pointing to the need to center indigenous knowledge in national and international policy.
Ruth is a Dena’ina Athabaskan and Ashkenazi Russian Jewish woman, raised in Anchorage, Alaska. She is a member of the Curyung Tribe, and also has roots in Bristol Bay. Ruth is the Climate Justice Director for Native Movement, a matriarchal grassroots Indigenous organization that fights for the rights of Indigenous peoples, our lands and waters, and justice for our ancestors and descendants. She has worked many years towards climate justice and a regenerative economy for all on her lands and beyond, including international advocacy with the United Nations Association and SustainUS. She is a daughter, a granddaughter, and aunty, a language learner, a traditional beadworker, and a subsistence fisherwomxn.
In February 2021, the Czech Foreign Minister Thomas Petricek announced a lawsuit against the Polish Republic at the ECJ over the controversial extension of the concession for open-pit coal mining in the Turów tri-border area. What makes this fact pattern stand out amongst other lawsuits between member states is unique to this case only: For the first time in the history of the European Union, two member states are suing each other on the grounds of environmental misconduct.[1]
This article is intended to be the first in a series of accompanied reports on what may become a landmark legal battle and will therefore focus primarily on the political and factual background of the lawsuit. It will conclude with a brief outlook.
Political and factual background
Coal in Europe
For several years now, Europe has been haunted by the question of energy transition and the right way to implement it. A hot debate at the moment is the meaningfulness and safety of nuclear energy as a supporting force and/or as the foundation of a successful shift toward renewable energy. Another form of historically important and wide-spread energy production is considered to be unsustainable in view of the climatic consequences it entails. While a large number of European countries have relied or still rely on coal-fired power generation, there is a clear movement in many member states from the 2010s onwards to phase out of “coal”.[2]
In this context, special attention is given to three countries in the center of Europe: Germany, Poland and the Czech Republic. These three countries not only had the most coal-fired power plants in 2017,[3] – together they had around 50 more than all other European member states (including Great Britain)[4] – but these countries also mine the most coal, by far. In 2017, the three of them were the top producers of soft lignite in Europe with 171.3 (Germany), 61.2 (Poland) and 39.3 (Czech Republic) megatons each. Poland alone stands out in hard coal production with 65.8 megatons per anno.[5]
Despite these similarities, the three coal heavyweights differ in one crucial feature in the run-up to the lawsuit: while Germany, after a long domestic political struggle, adopted a still much-criticized coal phase-out in July 2020 for 2038 with an early option in 2035,[6] and in the Czech Republic an expert commission has been preparing a coal phase-out since 2019 and in December 2020 recommend a phase out in line with the German plans for the year 2038,[7] a different, more resistant wind has been blowing in Poland, and not only since the conservative PiS government took office.
Coal discussion in Poland
When taking office in 2017, Poland’s Prime Minister Mateusz Morawiecki emphasized in his inaugural speech that his country would not abandon coal as a “central form of energy production”. Despite the European Union’s efforts to lower its climate targets, this may not come as a surprise , given that coal accounts for about 80% of Polish energy production (the Czech Republic, in second place, only has 50%), several hundred thousand jobs are linked to the coal industry, and Poland’s enormous coal resources.[8] Undeterred by the certainty that the EU would miss its climate targets, both liberal and conservative predecessor governments continue to put brakes on European coal reduction efforts in their country.[9] In this sense, the new government, in which the Energy and Environment Ministries announced that a coal phase-out before 2050 was not an option at all, and if so then only a reduction to 50% in energy production was possible, merely perpetuated and enforced the already existing foreign policies of previous Polish governments.[10]
This puts the government in line with what is probably the most important domestic political player in the coal sector: the Solidarność trade union. Originally known for its historic struggle for freedom in communist Poland in the 1980s, the union now aggressively promotes the interests of its members in the coal industry. In addition to saying that Poland should mine God-given coal as long as it is possible and economical, domestic political campaigns have been threatened against politicians who represent otherwise.[11]
But it is precisely this condition of economic viability that opens up a second unintended, domestic political area of tension for the government, in addition to the foreign policy pressure caused by the European climate targets. Poland’s self-imposed focus on coal is costing it dearly in multiple ways. Indirectly, the health damage caused by air pollution from coal-fired power plants and coal-fired furnaces – 33 of the 50 cities with the dirtiest air within the EU are in Poland[12] – is estimated to cost up to 26 billion euros more in the health sector.[13] In addition, since a 2018 ECJ ruling on the failure to comply with the relevant limits and several ignored reminders from the Commission, further fines of 4 to 50 billion euros are threatened if the government does not adopt effective measures as soon as possible.[14] But even directly, the economic viability is questionable. The increasingly expensive emissions trading certificates and the falling price of coal are making coal-fired power plants and extraction sites less and less profitable. Hard coal mining in particular has been running at a loss for years.[15] These operations are kept alive mainly by government subsidies.[16] The question of economic viability finally came to a head in 2018 when the financing question was raised for the planned Ostrołęka C coal-fired power plant. Banks refused to finance the 1.5 billion project because a profit margin could not be expected over the lifetime of the plant.[17] Two years later, the project was actually scrapped at the financing stage by the two state-owned energy companies Energa and Enea.[18]
All this actually led to a rethinking in government circles, where for the first time rumors of a coal phase-out even as early as 2036 occurred. However, Solidarność immediately intervened with its demand for a phase-out in 2060 at the earliest. Due to the fact that workers from the coal sector are among the core of its own electorate, the government accommodated the union and – which somewhatresembles a small revolution – decided in the summer of 2020 to phase out at least hard coal by 2049.[19] This is a result that both the trade unionists and the government can live with. But not the EU’s climate targets and the health of many people in the area. Because until then, the many sites will continue to be subsidized and operated.
Factoring and plant site in Turów
One of these sites is Turów, which is located in the Tri-State-area between Germany and the Czech Republic. Coal has been mined in the region since the early 18th century, initially underground and then as an open pit mine from 1904. Since 1962, the power plant of the same name has also been located in the immediate vicinity to the north. The resources of the 26 km2 mining area – already one of the 4 largest mining areas in Poland and is expected to be expanded to 30 km2 in the future – would allow coal to be mined there until 2044.[20]
And this is the crux of why the Czech Republic and Poland are now at odds over the project. Due to its location and size, the plant also radiates into neighboring countries and impacts both German and Czech environments. The concession originally allowed PGE, an energy company in which the state holds a majority stake, to operate the plant only until April 2020, but the Polish government not only extended it, but also allowed the aforementioned expansion of the production area both in width to 30km2 and in depth by another 330 meters. This expansion would see the polish production site touching the Czech border.[21]
Concerns of Activists and Plaintiffs
When criticizing the project, a distinction can be made between actual environmental impacts caused by the facilities and procedural errors in the extension and amendment of the concession. This distinction is necessary in particular with regard to the decision of the EU Commission from December 2020, which is a necessary prerequisite for a lawsuit between member states under Art. 259 TFEU, because the weight of the case for future treatment of transboundary environmental impacts will also be decided on this distinction.
Environmental impacts
1. Air pollution
The most obvious impact at coal-fired power plants, air pollution, is also a problem at the site in Turów. The ranking of the European Environmental Agency shows the coal-fired power plant in Turów not only as the second most polluting industrial facility in Poland, but also as the 7th in the entire European Union.[22] A study by the Center for Energy and Clean Air from 2020 shows that the pollution is by no means limited to Polish territory, but also affects German and Czech territory, in line with the phrase “emissions do not stop at borders”. Rather, of the 120 premature deaths in 2017 that could be attributed to emissions from the power plant and open pit mine, 80 occurred in Germany and the Czech Republic and only 40 in Poland. In addition, according to the study, approximately 290,000 people in the German regions of Zittau and Görlitz as well as the Czech region of Liberec are exposed to the maximum tolerable or even higher concentrations of PM2.5 around the clock. The commonly occurring risk increases with respect to diseases such as stroke, lung cancer, heart and respiratory diseases in adults, as well as respiratory infections and harm to cognitive development in children are felt particularly intensively here but extend far beyond this (cf. table 2).[23]
2. Impacts on groundwater and pollution of surface waters
But it does not stop at air pollution. Studies also show that open-pit excavations are affecting groundwater supplies on both German and Czech soil. In the Czech region of Liberec, for example, there is a threat of a significant drop in the groundwater level and, as a consequence, up to 30,000 people could lose access to drinkable water.[24] According to geologist Krupp, significant groundwater drawdown is also expected on German soil, particularly in the region around Zittau. However, this will primarily affect the deeper Tertiary aquifers, which have not yet been used for drinking water production.[25]
However, in addition to subsidence, there is another threat to near-surface groundwater that has contact points with surface waters. As a consequence of the acidic mine waters, significantly higher sulfate concentrations are found in the surface waters near the Turów plant. A similar trend is emerging for cadmium, uranium, and nickel. These pressures have led to waters being classified as “not good” under the Water Framework Directive (2000/60/EC). Presumably, this effect also spreads to the groundwater in contact, but a conclusive determination could not be made due to the lack of measuring points.[26]
3. Ground subsidence
Closely related to groundwater subsidence are future soil subsidence in general. Krupp states in his study that the areas affected by subsidence are largely on Czech and German territory, with the German part in particular comprising mainly built-up areas of the city of Zittau. This largely irreversible subsidence, which could already be as much as 1 m near the state border and gradually decreases to zero toward the west toward the Zittau basin rim, will continue to increase in the coming years due to groundwater subsidence, and according to the study’s assessment, building damage in the Zittau area cannot be excluded.[27]
Krupp further states in his report that PGE’s preferred modeling of the open pit could potentially trigger further soil mechanical instabilities during the flooding phases, which could adversely affect the German areas in particular. This is because the flooding could lead to a reactivation of the latent sliding surfaces of the slope failure from past years that runs under the Neisse River. In a resulting chain reaction, devastating consequences for people, material assets and the environment cannot be ruled out. Krupp for example, warns of the drying up of the Neisse River due to the overfilling of the open pit mine. Although PGE mentions the dangers of such slope failures in its application, it does not present any countermeasures. Krupp sees all these consequences as preventable, or at least mitigable, through more careful and environmentally friendly modeling of the pit.[28]
Procedural errors as a ground for the lawsuit
In addition to the actual impacts, several areas of concern have been identified by activists and critics at the procedural level of the mine’s extension and expansion.
On the one hand, it was criticized that sufficient public and intergovernmental participation had not taken place. Although there were consultations between the three member states, other concerns regarding the Turów plant are said to have been discussed there. Public participation, meanwhile, was almost completely absent. At least in the case of the short-term extension of the concession by 6 years. The situation is different for the extension of the concession to 2044, which is also being sought. Here, the public will be involved and consulted. Activists and experts hope that this inclusive process has the capacity to prevent an extension.[29]
On the other hand, experts have diagnosed a flawed environmental impact assessment as the basis for the extension decision of the Polish government. For example, Krupp criticizes a faulty determination of the status quo, so that the preparation of forecasts regarding the impact of different variants on the environment actually seemed impossible. Furthermore, although the report of PGE contains all the required chapter headings, several of them are missing not only the signatures but also the entire substantive explanations. Additionally, Krupp criticizes the fact that either further research was completely waived in the case of missing data or, in some cases, unsuitable sources of information were used.[30]
With such serious deficiencies, the legality of the extension is indeed more than just questionable.
Decision of the EU-Commission
And it was precisely on these actual impacts of the plant and procedural errors that the Czech complaint to the European Commission of September 30, 2020 was based. According to Art. 259 TFEU, member states taking legal action against another member state must file a complaint with the Commission. This is intended as a more or less last resort to achieve a pre-court clarification of internal disputes under Union law, since the Commission in effect makes a non-binding preliminary decision. In the process of this preliminary decision, the Commission deals with the written requests of the two parties.
In its complaint, the Czech government alleged infringements in relation to the Strategic Environmental Assessment Directive (2001/42/EC), the Water Framework Directive (2000/60/EC), the Environmental Impact Assessment Directive (2011/92/EU) and access to information Directive (2003/4/EC) as well as the principle of loyal cooperation enshrined in Article 4(3) TEU.
After hearing from the two states involved, the European Commission courtly announced in a press statement on December 17, 2020 that they agree with the Czech government on certain issues of the complaint. First and foremost, these were the procedural errors that had been criticized.
The Commission found that Poland continued to fail to adequately transpose the Environmental Impact Assessment Directive (2011/92/EU) into national law. Thus, even if under Polish law the environmental impact assessment had been carried out fully and in accordance with the requirements, this would not have met European standards. This is also the subject of another pending infringement proceeding under Art. 258 TFEU against the Polish government.
However, the Commission assumes that the requirements of the Environmental Impact Assessment Directive (2011/92/EU) and access to information Directive (2003/4/EC) were disregarded in any case, as there was no sufficient public participation and consultation between the respective member states concerned. As already mentioned by the critics of the project, consultations between Poland and the neighboring countries did take place, but these were related to the environmental permit and the change of the land-use plan, and not to the extension of the concession.
The other allegations, in particular those against the Strategic Environmental Assessment Directive (2001/42/EC) and the Water Framework Directive (2000/60/EC), were rejected by the Commission as unfounded after hearing evidence and arguments from both sides.[31]
The European Commission will now have to look into the present matter again, because the wind of the Commission’s positive partial decision and the new expert opinion by Krupp on behalf of Greenpeace have also persuaded the city of Zittau to lodge a complaint with the EU.[32]
Outlook
In the meantime, the Czech Republic has also taken action, first issuing an ultimatum to the Polish government. This stipulated that an earth wall be built on the Polish side of the border to protect citizens in the Czech Republic from the dust pollution produced by the open pit mine and that the Polish state pay compensation of 40 million euros for endangering the drinking water supply and for the financing of new wells. In addition, an expert commission with specialists from the affected countries should also accompany the project in the future.[33] However, this ultimatum expired without a response, compelling the Czech government to finally file a lawsuit with the ECJ. Urgent legal protection was also applied for with the intention to bring the mine to a standstill for the time being.
Both decisions are still pending. The same applies to the decision by the German government as to whether it will join the lawsuit. A preliminary verdict on the urgent legal protection is expected in the next few weeks. These proceedings have the potential to lead to a landmark decision that could determine future environmental issues and the handling of emissions in the EU. In particular, the question of the responsibility of emitting states could be taken up in a specific case, which in turn could open the door for other constellations. Furthermore, questions of habitat destruction by emissions may also be raised
It will be interesting to observe whether the ECJ adopts the easier option by way of the Commission and refers purely to the procedural errors, so that the substantive issues are decided in the respective national proceedings, including public participation and proper EIA; or whether the judges are tempted to intervene more substantially due to the urgency (and gravity) of this matter. The legal proceedings are therefore eagerly awaited.
Robert Los is a state exam candidate at Bucerius Law School in Hamburg with a completed specialization in corporate and capital markets law. He has dealt with the topics of migration and climate mainly in the context of voluntary work.
[20]Krupp, Gutachten zu den grenzüberschreitenden Auswirkungen einer Fortführung des Abbaus der Braunkohlelagerstätte Turów (Polen) auf die Gewässer in Deutschland, p.16
[25]Krupp, Gutachten zu den grenzüberschreitenden Auswirkungen einer Fortführung des Abbaus der Braunkohlelagerstätte Turów (Polen) auf die Gewässer in Deutschland, p.16
[30]Krupp, Gutachten zu den grenzüberschreitenden Auswirkungen einer Fortführung des Abbaus der Braunkohlelagerstätte Turów (Polen) auf die Gewässer in Deutschland, p.
[31] European Commission, Environmental Impact Assessment: Commission adopts reasoned opinion in case brought by Czechia against Poland, 17. December 2020.
We live in an age of extinction. The current geological epoch in which Earth and humanity finds itself in is the Anthropocene. It describes the devastating biological impact humanity has had on the planet, tantamount to an extinction event.[1] During this period, human-influenced, or anthropogenic, factors have altered geological, atmospheric and other earth systems beyond scientifically defined stable parameters, resulting in, amongst other consequences, a changing climate and mass extinctions of flora and fauna.[2] Within this context, the overarching argument of this article is that the current environmental law regime, in South Africa and globally, is inadequate to address the challenges of the Anthropocene and posits that rights-based legal responses to environmental degradation offer a solution in this regard.
This will be conveyed through a cursory analysis of the history of and threats posed by the Anthropocene, coupled with a discussion of the status and flaws of the current environmental law regime. With this in mind, the notion of environmental constitutionalism as a way forward and its application in the South African context will be discussed. The importance of its implementation with regards to environmental movements in South Africa will then be highlighted. Thereafter, and within the context of the global environmental legal regime, the responses of international environmental law to climate change will be assessed. Following on from this, the capacity of international law to hold global actors – particularly multinational corporations – accountable for transnational environmental harm will be examined. Finally, the role of rights-based approaches in enhancing the efficacy of climate change litigation in relation to these and other disputes will be evaluated.
Ultimately, it is contended that a holistic reimagining of environmental law is required wherein a balancing of the rights of nature and socio-economic rights is achieved and placed at the heart of environmental action, in order to address the greatest threats of the Anthropocene.
Environmental Law in an Age of Extinction
The Anthropocene is an epoch wherein humankind is changing the fundamental nature of Earth’s systems, perhaps irreversibly, due to a number of energy-dependent processes that began during the First Industrial Revolution.[3] The challenges presented by this include issues of human security (especially within the Global North and South paradigm as a result of environmental degradation), energy security, as well as how to effectively mitigate and adapt to climate change.[4] Environmental law and governance are the core structures through which to combat such exponential effects.[5]
Despite this new-found understanding of the challenges of the Anthropocene, the global environmental legal system lacks a collective focus, proactive measures, or a substantive recognition of the threats posed by the Anthropocene. It is therefore ill-equipped to respond decisively to the current global ecological crisis.[6] This paper contends that rights-based legal approaches to combating environmental degradation are suitable strategies to transform environmental law and governance along such lines in order to address the environmental and socio-economic challenges of the Anthropocene.
A transformative approach to environmental constitutionalism is one such method. It is a legal philosophy dedicated to a rights-based approach to environmental action within a framework of transformative constitutionalism.[7] Transformative constitutionalism in the South African context involves breaking away from past oppression via large-scale societal change grounded in legal processes.[8] Hence, transformative environmental constitutionalism in South Africa should entail, at a minimum, an improvement in basic living conditions of the poorest members of society, and an understanding that socio-economic rights – such as the right to shelter, water, and dignity – are inherently linked to the protection and restoration of the environment.[9]
Environmental Constitutionalism and its Implementation in South Africa
There must be a shift from primarily procedural approaches to promote environmental constitutionalism in South Africa via substantive rights-based legal mechanisms. Environmental constitutionalism is a multi-faceted concept that consists of ‘thin’[10] components, that is, the overarching framework of environmental governance, as well as ‘thick’[11] components that relate to rights-based environmental governance strategies.[12] Law itself is necessary for effective environmental constitutionalism due to its ability to shape human behaviour and protect common interests.[13]
The Constitution of the Republic of South Africa, 1996 (the Constitution) is one such legal framework, entrenching substantive environmental and socio-economic rights.[14] Within this framework, the South African legal architecture is imbued with a substantive environmental right.[15] However, courts in South Africa have thus far failed to develop this substantive right as it applies to environmental justice, opting instead to focus on constitutionally entrenched procedural rights such as the right to access to information, undermining important environmental issues.[16] The impact of this, is that the most potent effects of environmental degradation in the Anthropocene are not placed at the centre of the discourse nor are they taken into account when forming legal foundations for possible solutions.
Substantive rights must be prioritised in South African jurisprudence if the nation’s transformative goals are to be realised.[17] Issues of social justice, through a discussion of the impact of environmental degradation on the ability of the majority of the population to enjoy fundamental human rights, and the effects upon the environment itself, must be brought to the fore. Transformative environmental constitutionalism demonstrates that socio-economic and environmental rights are not mutually exclusive, and that they in fact inform and reinforce one another.[18]
Rights-based Approaches and Environmental Movements in South Africa
Public interest litigation and environmental activism are necessary methods to restructure South African power dynamics in order to effectively protect the environment and achieve socio-economic goals as discussed above.
Environmental protection of this nature heavily depends upon public participation.[19] A major obstacle to public interest environmental litigation in South Africa is the emergence of strategic litigation against public participation (SLAPP) suits.[20] SLAPP suits, originating in the United States (US), are meritless cases brought by polluters primarily to waste the resources and time of the opposing party – winning the suit is a secondary concern.[21] South Africa’s environmental legislative framework, consisting mainly of the National Environmental Management Act[22] (NEMA) and the Constitution, lacks the focus of US (and particularly Californian) statutes to effectively address SLAPP suits as they apply to environmental litigation.[23]
Alternatively, South African courts should utilise procedural and substantive rights-based legal methods currently at their disposal to ensure public interest environmental litigants are protected from SLAPP suits, especially in relation to their rights to seek satisfaction in court as well as that of a healthy environmental.[24] It is also vital that poor-led movements work alongside existing environmental organisations that have pursued public interest environmental litigation, such as Earthlife Africa, to combat power structures and private sector interests in South Africa in order to ensure that a balance between socio-economic and environmental rights is achieved.[25] It has been made clear that rights-based approaches have the potential to protect and promote environmental movements in developing nations, which are generally the states most vulnerable to the effects of environmental degradation in the Anthropocene. Within this context, climate change, which is possibly the greatest threat of the current epoch, is discussed below.
The Big Picture: Understanding the International Climate Law Regime
The adequacy of international and South African legal responses to climate change is dependent upon their implementation. Climate change is the overarching existential threat of the Anthropocene.[26]
Three key treaties have been negotiated for the purposes of regulating climate change at the global level, and represent sources of international climate change law. In 1994, the United Nations Framework Convention on Climate Change (UNFCCC), signed in 1992, entered into force.[27] The first international agreement to be linked to the UNFCCC was the Kyoto Protocol (Kyoto), signed in 1997.[28] Kyoto is no longer in force. A major pitfall was that negotiations failed to make major polluters, such as the US, parties to the treaty.[29] In 2016, the Paris Agreement (Paris), signed in 2015, entered into force.[30] It is historic in the sense that it is the first climate change treaty to reference human rights.[31] Although it is not an orthodox human rights instrument, its development and creation in line with global rights norms serves to entrench them within the climate regime, and allows for recognition of how climate change impacts the most vulnerable.[32] Article 4(4) of the treaty outlines the General Principle of international environmental law of Common but Differentiated Responsibilities. The Principle recognises the uneven distribution of climate change-related burdens, with the most destructive consequences exacted upon developing nations rather than the developed originators of the problem.[33]
Recent legislative responses such as the 2018 Climate Change Bill and 2019 Carbon Tax Act serve as manifestations of South Africa’s commitment to Paris.[34] These responses, if enforced, would meet many of South Africa’s Nationally Determined Contributions to the climate fight as per Paris. Though these recent responses are comprehensive, their adequacy in addressing the climate crisis will depend on their largely voluntary enforcement, both internationally and locally.
Corporate Accountability for Environmental Harms on an International Basis
Within this global context, multinational corporations (MNCs) must be held accountable for transboundary environmental harm by international law. The global scale at which modern MNCs operate inevitability results in widespread environmental harm.[35] Poorly regulated and substandard MNC activities have resulted in numerous accidents, such as water contamination, deforestation, soil erosion and the exploitation of natural resources by oil, mining and forestry companies.[36]
Domestic recourse is the preferred avenue for preventing environmental abuses by MNCs.[37] This, however, is a largely ineffective avenue as it presents an orthodox view of law wherein states are the principle actors in the global order, and state sovereignty is paramount.[38] This disregards the fact that MNC operations in the host country have the potential to affect that state’s environment as well as that of other countries, as was the case in Ecuador and Peru with regards to MNC water contamination.[39] Additionally, this ignores the very real influence of MNCs upon governments, particularly in developing states, and the threat this presents to domestic enforcement.[40] For example, the Nigerian state relies on oil MNCs as its major source of revenue, in turn granting these corporations enormous influence and control.[41]
The current international legal order is not well equipped to address transboundary environmental harms.[42] One solution would be the development of international jurisprudence to recognise an universal substantive environmental right, under which companies could be held accountable.[43] This would supplant the outdated concept that international change is largely state-driven, especially with regards to the environment, and instead increase international focus on corporate-driven environmental destruction.[44] There is evidence to suggest that international enforcement would reduce corporate-driven environmental disasters as well as provide schemes to justly distribute clean-up costs.[45] This long-term approach must be supplemented through short term enforcement by economic superpowers such as the United States, where many MNCs are incorporated.[46]
The Importance of Rights-based Approaches to Climate Litigation
The courts are a key avenue for the enforcement of the rights-based legal frameworks discussed above. This section contends that a rights-based approach to climate change litigation enhances its efficacy as a tool of climate action.
The global threat of climate change results in a number of contentious situations and issues of dispute.[47] It is a phenomenon that has grown as a subject of legal proceedings and has caused pre-existing legal norms to be reimagined in light of its many strands of contention and uncertainty.[48] Increasingly, plaintiffs are advancing rights-based arguments in climate change litigation.[49] Climate change litigation is a growing global[50] trend, coinciding with the Paris Agreement and the alignment of the global climate regime with international human rights as already discussed, wherein plaintiffs (generally NGOs and individuals), seek to urge defendants (generally governments, though corporations are increasingly being brought into the fold) to be more ambitious in their responses to their climate change, and to enforce or enhance existing climate policies more effectively.[51]Gbemre v Shell Petroleum[52] was notable in that it was one of the few climate-related cased premised on rights entrenched under the African Charter.[53] The landmark case of Leghari v Federation of Pakistan[54] directly relied on fundamental rights to rule that government’s failure to sufficiently combat climate change violated petitioners’ rights. This growing pattern has its roots in the grassroots genesis of the climate justice movement, framed in pluralistic terms of social justice, democracy and sustainability.[55]Juliana v. United States[56] is a case based on a lawsuit asserting that the US government violated the youths’ rights, and that of future generations by allowing activities that significantly harmed their right to life and liberty. Its dismissal by the Ninth Circuit is currently being appealed.
The importance of a rights-based approach goes beyond the mere winning of a case. ‘Winning’, in terms of this kind of strategic litigation, also relates to the promotion of social and policy issues with respect to climate change and ingraining these issues as facets of public sentiment and thought, with particular reference to the impact of climate change on fundamental rights.[57]
Conclusion
The Anthropocene represents an epoch in which humanity is fundamentally altering the functioning of Earth’s systems. The use of rights-based approaches to combat human-induced environmental degradation is vital if we are to address its greatest challenges.
One such approach is environmental constitutionalism. This legal concept is dedicated to promoting and balancing socio-economic and environmental rights within a constitutional framework. The use of substantive environmental rights within this approach is vital to promote and protect environmental activism and grassroots environmental justice movements. Rights-based approaches are also key in the context of international climate law. The Paris Agreement was developed in line with international human rights norms, and this had the effect of centring the human and environmental impact of climate change in the global discourse. Another vital requirement is to hold MNCs accountable for transnational environmental harm. Where domestic procedure has failed in this regard, international law must succeed. The probability of this success is enhanced by the use of rights-based approaches placing international focus on corporate-driven global environmental harm in addition to allowing for more effective enforcement and prevention schemes.
Perhaps the most important indicator of the value of rights-based approaches is the growing global trend of the advancement of rights-based arguments in climate change litigation. Cases such as Gbemre, Leghari and Juliana are signifiers of changing patterns of public thought with reference to the impact of climate change on fundamental rights. Ultimately, the need to import fundamental rights into the environmental legal and governance regime underlies a need to reimagine society as a whole. This, I believe, is possible in a world premised on the sanctity of international human and environmental rights.
Human Rights Pulse core team member and Earth Refuge Archivist Vaughn is passionate about sustainability and human rights, his scholarship and writing focuses on international law, climate change and transitional justice.
[6] F Biermann et al ‘Navigating the Anthropocene: Improving Earth system governance’ (2012) 335 Science 1306.
[7] M Murcott ‘Introducing transformative environmental constitutionalism in South Africa’ in E Daly et al (eds) New frontiers in environmental constitutionalism (2017) 288 289.
[8] K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14 South African Journal on Human Rights 146 150.
[13] L Kotzé ‘Human rights and the environment in the Anthropocene’ (2014) 1(3) The Anthropocene Review 252.
[14] J Dugard & A Alcaro ‘Let’s work together: Environmental and socio-economic rights in the courts’ (2013) 29 South African Journal on Human Rights 15 16.
[16] M Murcott ‘The procedural right of access to information as a means of implementing environmental constitutionalism in South Africa’ in E Daly and J May (eds) Implementing environmental constitutionalism: Current global challenges (2018) 194 195.
[17] M Murcott ‘Transformative environmental constitutionalism’s response to the setting aside of South Africa’s moratorium on rhino horn trade’ (2017) 6 Humanities 85 86.
[19] T Murombo & H Valentine ‘SLAPP suits: An emerging obstacle to public interest environmental litigation in South Africa’ (2011) 27 South African Journal on Human Rights 105.
[23] T Murombo & H Valentine (note 21 above) 87 88 93 94.
[24] WA Joubert et al LAWSA civil procedure (2007) 229.
[25]Earthlife Africa Johannesburg v Minister of Environmental Affairs and Others 2017 (2) SA 519 (GP).
[26] M Kidd Environmental law (2011) 60; K Davies et al‘“The Declaration on Human Rights and Climate Change”: A New Legal Tool for Global Policy Change’ (2017) 8(2) Journal of Human Rights and the Environment 217; Amadiba Crisis Committee ‘Amadiba Crisis Committee (ACC)’ http://aidc.org.za/partners/amadiba-crisis-comittee/ (accessed 31 July 2019).
[27] UN General Assembly, United Nations Framework Convention on Climate Change: resolution / adopted by the General Assembly, 20 January 1994, A/RES/48/189, (UNFCCC).
[28] Kyoto Protocol to the United Nations Framework Convention on Climate Change, 10 December 1997, U.N. Doc FCCC/CP/1997/7/Add.1, 37 I.L.M. 22 (Kyoto).
[29] J von Stein ‘The international law and politics of climate change: Ratification of the United Nations Framework Convention and the Kyoto Protocol’ (2008) 52(2) Journal of Conflict Resolution 263.
[30] Paris Agreement to the United Nations Framework Convention on Climate Change, 12 December 2015, T.I.A.S. No. 16-1104 (Paris).
[32] JH Knox ‘The Paris Agreement as a human rights treaty’ in D Akande et al. (eds) Human rights and 21st century challenges: Poverty, conflict, and the environment (2018) ch 15.
[37] E. Prudence Taylor ‘From environmental to ecological human right: A new dynamic in international law?’ (1990) 10 Georgetown International Environmental Law Review 309 350.
[38] A Shinsato ‘Increasing the accountability of transnational corporations for environmental harms: The petroleum industry in Nigeria’ (2005) 4 Northwestern Journal of International Human Rights 194.
[47] E Fisher et al ‘The legally disruptive nature of climate change’ (2017) 80(2) Modern Law Review 175.
[48] D Markell & JB Ruhl, ‘An emprical assessment of climate change in the courts: A new jurisprudence or business as usual?’ (2012) 64 Florida Law Review 15; Fisher (as above) 177 178.
[49] J Peel & HM Osofsky ‘A rights turn in climate change litigation’ (2018) 7(1) Transnational Environmental Law 39.
[55] D Schlosberg & L Collins, ‘From environmental to climate justice: climate change and the discourse of environmental justice’ (2014) WIREs Climate Change 362.
19 March 2021 – conducted by Earth Refuge Correspondent James Sedlak
In this interview, Jon and Martha, a family living in Sonoma County, California, share their experience with wildfire and a drying climate. From running a natural wine label to raising a newborn son, they have faced unique climate challenges. They speak about stories of evacuation, a changing community, and their personal question of migration.
In December 2020, France officially recognized its first climate refugee – a 40-year-old Bangladeshi man with severe respiratory asthma. The appeals court in Bordeaux overturned his deportation order, finding that the substantial level of air pollution in Bangladesh would only exacerbate his condition.
Sheel, as the media named him, fled persecution he faced in his hometown north of Dhaka, the capital of Bangladesh. He arrived in France in 2011 where he settled in Toulouse and has since made a living for himself.
Sheel suffers from severe asthma and sleep apnea for which he needs careful medical treatment that is unavailable in Bangladesh. Upon his arrival in France, Sheel applied for political asylum but his claim was denied by the French Government, leading him to start a procedure for a residence permit as a “sick” foreigner. Sheel was granted a temporary residence permit as a sick foreigner in 2015, as this kind of permit is only granted to those who cannot receive proper treatment in their home country and whose life would be put at risk if they were to be sent back.
The case
In 2019, however, the Haute-Garonne (French department) Prefecture did not renew his residence permit claiming that he would be able to receive proper treatment in Bangladesh. As a result, on 18 June 2019 the Prefecture issued Sheel an expulsion order (or, ‘OQTF’ – Obligation de Quitter le Territoire Français).
Sheel’s lawyer, Ludovic Rivière, argued that not only would he receive poor medical treatment in his home country but due to the high level of air pollution in Bangladesh, his condition would only worsen. In fact, the Environmental Performance Index of Yale University and Columbia University ranks Bangladesh as 179th in terms of air quality in 2020. In addition to this, the level of fine particles in the air in Bangladesh is six times higher than the maximum required by the World Health Organization (WHO). The WHO figures for 2016 also show that 82% of the 572,600 deaths recorded from non-communicable diseases in Bangladesh were caused by air pollution.
In light of those arguments, on 15 June 2020, the Administrative Court of Toulouse cancelled the OQTF as it estimated that provision of Sheel’s required medical treatment would not be adequate in Bangladesh. The Haute-Garonne Prefecture appealed that decision, and the case was then brought before the court of Administrative Appeals in Bordeaux in December 2020.
Mr. Rivière’s plea was founded on environmental arguments, which he defended by presenting the court with the WHO figures. The court ultimately decided to permit Sheel to stay on French territory and cited the environmental criteria to justify the final decision. The court in fact noted that sending Sheel back to Bangladesh would lead to an “aggravation of his respiratory disease due to air pollution”.
A symbol for greater protection of climate refugees in Europe?
The notion of a “climate refugee” is not officially inscribed in the French legal system – Sheel is therefore not legally referred to as one. Although environmental criteria have been evoked in some French cases, Sheels’ is the first where environmental degradation is used as the leading argument for the final ruling. Could this possibly open the door for other similar cases? Could this case be seen as a step toward a change in migration policy in Europe, particularly as the number of climate migrants is predicted to rise to 200 million by 2050?
François Gemenne, teacher and specialist in environment-related migration, stated that while he sees Sheel’s case as a step in the right direction, it is unlikely that this outcome will become frequent unless the criteria for asylum are broadened. His reason for this belief is that many asylum seekers that are victims of conflict and/or persecution are often also victims of environmental degradation. Whilst the authorities are aware of this, the lack of regulations and structures protecting climate migrants makes it unlikely for these arguments to be accepted as the main justification for asylum.
However, this could possibly change with the Nansen Agenda, a “state-led consultative process to build consensus on a Protection Agenda addressing the needs of people displaced across borders in the context of disasters and climate change”. This initiative was ratified by 110 countries in 2015, including France, and has the potential to clearly define the protection criteria for climate refugees. The issue is, like many immigration policies, it is non-binding, allowing countries to deflect their responsibility to protect refugees. While these – the Sheel outcome and Nansen Agenda – are extraordinary first steps for providing solutions to climate migration, policies that clearly protect climate migrants and refugees need to be put in place soon as the number of climate migrants is only set to rise.
Flora Bensadon is an Earth Refuge Archivist with a degree in History and International Development Degree from McGill University. Through her studies, her culturally diverse background and her travels, Flora has taken a profound interest in the problems of migration, specifically those of climate refugees.
Wildfires in the Western United States (US) have been increasing in intensity and destruction over the past decade due to various factors, including severe droughts and heavy winds. They leave undeniable devastation in their wake, such as the charred remains of the forests, farms, and homes they burn as well as the severe health risks posed to the people in their proximity due to smoke and debris.
The fires also cause more latent harm that has lasting effects on communities. Apart from the physical destruction, there are costs that result from the fire evacuations, including the loss of business, personal finances, health struggles, and the impact on deserted communities. Wildfires can create uninhabitable areas, forcing people to evacuate their homes and become migrants in their county or state. The term ‘migrant’ is typically understood to imply crossing country borders. However, the wildfires in Western North America have forced hundreds of thousands of residents in California and Oregon to migrate across county and state lines in search of safety.
I. Physical and Mental Health Effects
The wildfires pose health risks both physically and mentally. Medical complications can begin even before the flames are seen as the smoke alone can be deadly[1]. In October 2020, smoke surrounded counties in Oregon where more than eight million people reside, leading to hundreds of additional Emergency Room visitations. Many of the patients began to struggle with their breathing as soon as the smoke appeared, and hospitals were already stretched thin from battling the COVID-19 pandemic. Some residents were unable to go to hospitals which were at full capacity, and others ended up dying later on from complications such as pneumonia[2]. Minuscule particles invisible to the naked eye mean that the inhalation of smoke is extremely dangerous. Often, people do not realize the risk of their situation until they are already suffering the respiratory effects[3]. The evidence shows that this can be deadly: an unexpected blaze of smoke in California killed 85 people in the summer of 2018, and Stanford University research has revealed that about 3,000 people over the age of 65 in California died prematurely after being exposed to smoke in early August of 2020. [4]
In late October 2020, wildfires spread through southern California, and in an attempt to prevent electrical fires, counties decided to cut the power from homes and buildings[5]. Over 90,000 people were under mandatory evacuation orders in Irving City alone whilst firefighters tried to regain control. Two firefighters were severely injured by the flames and sustained second and third-degree burns across much of their bodies. Enduring such physical trauma also has mental health implications.
Researchers at the Centre of Social Medicine and Community Health in New Delhi, India, carried out a study on trauma and its effects on mental health and found strong links between the two[6]. Disasters such as wildfires are not contained to the inherent damage caused, but create ripples of new problems and intensify the severity of others. Natural disasters have long-lasting traumatic implications for both society at large as well as individuals.
Psychological distress is a common reaction to devastating events such as forced evacuation, relocation, and disruption from the daily routine of one’s life. Experiencing a natural disaster increases the risk of Post-Traumatic Stress Disorder (PTSD), anxiety, and depression[7]. Children who may not understand the full severity of the situation are at even greater risk of these mental struggles, as well as suffering from shock as the result of such disruption[8].
As fire season began in the midst of the COVID-19 pandemic, parents on the West Coast struggled to care for their children’s mental health. It became unsafe to be outside for prolonged periods due to the dangers of smoke inhalation. This left parents inside with their doors locked, windows shut, and air purifiers on trying to keep their children entertained to avoid cabin fever.[9] One mother, Meg Keene, tried to calm her son, who has ADHA, anxiety, and depression. However, the orange skies in the daytime made him afraid of an apocalypse, and he asked to stay in a room without windows[10]. The relentless fires have increased mental health struggles for many families who are trying to survive a global pandemic and wildfire season.
Home is often a secure place for people to bunker down, and with a stay-at-home advisory or orders issued by the governors of Oregon and California, home is where people spent most of their summers. However, complications arose when fire evacuations were ordered whilst these orders were in place. Home was no longer a safe place to be, but neither was anywhere else due to the pandemic. Families struggled to find or afford alternative accommodation following months of layoffs and record unemployment rates. Those who were still employed did not want to risk losing their only income source and disrupt their lives by evacuating. In Oregon, when the fires spread abruptly and destroyed homes, people booked up all the local hotels and accommodation, making alternative housing almost impossible.
Wildfires spread rapidly through Oregon once more in September 2020, and people were forced to begin to evacuate their homes with only three-hours’ notice[11]. Many people were unable to pack within the time restriction and due to the quickly traffic-jammed roads, and so only took their pets and the shirts on their backs. Roads were closed to prevent the spread of fire, but that left few options for people trying to evacuate. With no accommodation available, people parked in parking lots and slept in their cars with their cats and dogs[12]. California and Oregon state governments encouraged inhabitants to prepare and have evacuation plans in place, but with only a few hours’ notice, a pandemic raging and limited resources for the hundreds of thousands of people forced to flee, chaos ensued. Families’ typical evacuation plans, which typically involve staying with a friend or family member in another town were disrupted or not an option due to the risk of COVID-19.
II. Impact on Low-Income Families
Like all disasters, fires disproportionally harm low-income families. Many families out West struggle to afford temporary accommodation elsewhere. Evacuations can happen several times a year and for varying lengths of time. Many people cannot afford to take time off from their jobs and afford housing and food costs elsewhere[13]. Food costs also tend to increase when seeking alternative accommodation, as there is often not a kitchen available. Families are then forced to purchase more expensive premade meals. Often families also do not have reliable transportation or a car, meaning that they must pay bus or train fees; a disruptive cost for an already economically burdened family[14]. Several government agencies provide disaster loans, but unfortunately, not all low-income families qualify for these relief loans[15]. In the event that a family does qualify, it can take months or more for the funds to come through, at which point the family is often even more in debt. In addition, many of these loans do not cover reconstruction for many of the homes that have been damaged or decimated by the heat and the flames of the wildfires.
The 2018 California wildfires burned down Wendy, and Norm Alvarez’s home and tool shed, destroying all their possessions[16]. This left them without shelter and destroyed Norm’s livelihood as he no longer had the tools for his carpentry work. The couple could not afford homeowner’s insurance, which put them in a precarious financial situation. Many of those who lose homes in the fire are unable to fully recover financially, and this has an impact that can last for several generations. It creates instability in the community as people do not know how long they will be able to afford to live in one place, and are often forced to move elsewhere in pursuit of affordable housing options[17]. Well-paying jobs and reasonably priced housing accommodation are difficult to find in rural areas, especially when neighboring communities have suffered similar losses and are competing for the same jobs and homes[18].
Some people have received relief in the form of Federal Emergency Management Agency (FEMA) provided trailers whilst they recover from the disaster, but they may only use the trailer for a maximum of 18 months[19]. Home renovations and repairs are expensive and time-consuming; it takes time to remove all the fire damage and appraise whether anything is at all salvageable. Ellen and John Brackett lost their home in a fire and lived in a FEMA trailer whilst reconstructing their home with the knowledge that they would have to live in a tent on the property if it was not completed in time. As parents of two teenagers and caretakers of a 70-year-old parent, living in a tent would give rise to an entire host of other problems. Many people in the community were already living in tents, with no other relief or rebuilding plans available[20].
III. Impact on Insurance and Business
Due to the risk of fire, insurance companies have significantly increased their rates. This means that many residents cannot afford homeowner or renters’ insurance. In September 2020, California implemented new laws to provide affordable insurance in fire risk areas, but this has created the fear that insurers will simply stop offering insurance to those in high-risk regions[21]. Since 2017, insurers have started to discontinue insurance for homes in fire-prone regions. The inability to access insurance can make homes harder to sell and decreases their overall value[22].
In 2020 California suffered the worst wildfire season recorded. 10,488 structures were damaged or destroyed as a result, and 4,257,863 acres of land and forest were destroyed[23]. This devastation increases the risk that insurers will stop providing services at increasing rates, wrecking the housing market in many areas. Insurance providers have been working with homeowners to detail the steps they can take to mitigate fire risks, but there are only a finite number of precautions a homeowner can take to reduce the risk of damage as forest fires increase in both frequency and severity[24].
Insurance rates and fire risks are also increasing the rate at which people move away from high-risk communities, creating climate migrants within the state. This ruins businesses, especially local businesses that were first plagued by COVID and were then hit by the fires or their secondary effects. Northern California has a billion-dollar agricultural industry that provides over one hundred thousand jobs[25]. Fires in the area have ruined many vineyards and destroyed decades-old vines. Without the plants, there is no business. New vines take three to four years to produce grapes, and much longer to yield quality grapes. The smoke in the area taints the wine while it is being fermented and can ruin the overall flavor, which could become a problem for the industry. Even if plants do survive, the heat of the fires causes much of the fruit fall off, and according to federal food and safety regulations, a crop cannot be sold once it has fallen off of the vine[26]. California grows 90% of avocados in the US – an industry worth millions to the economy – but in 2017 many farmers lost their avocados to wildfires, which led to the loss of many farming jobs as well[27]. Most of these farms are small and family-run in the south of the state. This economic loss has continued to challenge them each year as the fires increase, making it harder to recover each time[28].
The pandemic had already impacted small businesses in rural areas, and the fires and smoke brought with them another wave of problems. Many local shops and cafes were destroyed in the fires, and others had to close due to the hazardous air quality[29]. The sun was blocked out by all the smoke, and indoor seating was limited or banned due to COVID-19 restrictions, leaving countless local business owners with no choice but to close in the interests of safety. This came at a cost for many owners who had to make the difficult choice to close for good. If businesses cannot be run, they must close up shop and move to a place that is inhabitable, where smoke and fire do not pose a threat to them or their customers.
The wildfires have increased in frequency and severity over the past decade, causing millions of dollars of damage and affecting the lives of West Coast communities for generations to come. The fires themselves have wreaked havoc that cannot, without – affordable – insurance, be repaired. Families have suffered emotionally, mentally, and financially from these traumas. Many people have suffered and even died due to health complications from the flames and smoke, whilst others have lost their means of income and life’s possessions. People are being forced to move out of these areas because they can no longer afford the cost associated with living in a high fire risk area.
Conclusion
Despite the tragedies faced by these communities, they have come together and shown strength whilst trying to put their homes and lives back together. Organizations and companies across the US have pitched in to help provide relief.
The Salvation Army has helped provide essential services such as the provision of food, water, shelter, and emotional support to many first responders[30]. Many local Airbnb hosts have volunteered their accommodations, and the American Red Cross has been collecting donations[31].
There are many ways to get involved and help the communities hit by the fires, including volunteering time, resources, and funding. Organizations like Baby2Baby collect essentials such as formula, diapers, wipes, and baby food for infants and toddlers whose families were displaced by the fires[32]. The California Fire Foundation provides families with relief by donating gift cards to assist in replacing necessities that were lost or destroyed[33]. There are also food banks across the West Coast that have reopened and provide meals to families and front-line workers in need. California’s Office of Emergency Services also maintains a list of reputable foundations where donors can safely provide relief funding. When communities support one another, they can accelerate the rebuilding process and minimize the potential ripple effects of such disasters.
This article is part of our Spring 2021 collaboration with students from the International Human Rights Clinic at the Western New England University.
Jennifer Fields is a second year Law Student at Western New England School of Law in Springfield, MA. She is on the Dean’s List and is working on a concentration in International and Comparative Law to complement her passion for justice. In college, she worked for Beit Ha’Gefen in Haifa, Israel, creating a safe, multicultural space for refugees settling into Israeli life. Currently, she is active in her community as a trained legal observer for the National Lawyers Guild and does Pro Bono work with the ACLU. When the season is right, she enjoys skiing and spending time on the water.
[11] Andrew Freedman, Western wildfires: Evacuations in California and Oregon as destructive fire outbreak engulfs region, (Sept. 9th, 2020),https://www.washingtonpost.com/weather/2020/09/09/western-fires-live-updates/.
[13] Carlos Martín, Improving the Disaster Recovery of Low-Income Families, https://www.urban.org/debates/improving-disaster-recovery-low-income-families
[16] Sam Harnett, Low-Income Communities Struggle To Recover After A Wildfire, (Sept. 19th, 2020), https://www.npr.org/2018/09/19/647606049/low-income-communities-struggle-to-recover-after-a-wildfire.
[24] Flavelle, As Wildfires Rage (Sept. 16th, 2020).
[25] Kelly McEvers, Northern California Wildfires Destroy Thousands Of Businesses, All things Considered, NPR https://www.npr.org/2017/10/12/557444669/northern-california-wildfires-destroy-thousands-of-businesses.
[26] BBC, California wildfires: Businesses face ruin as blaze rages, (Dec. 2017), https://www.bbc.com/news/world-us-canada-42289831.
As climate change and subsequent environmental disasters continue to force people to leave their homes, policymakers and aid organizations must acknowledge that relocation is more difficult for vulnerable populations and low-income communities. Climate migrants are “involuntary movers,” but it is important to investigate the traumas and challenges of “involuntary stayers” in the context of climate crises as well in order to create robust support networks.
In instances of climate-induced displacement, the ordinary stresses of moving are compounded with the stresses of an environmental catastrophe. Not only must migrants account for the significant financial, social, and physical tolls of moving, but also consider the specific implications of the crisis facing their home. Flooding, fires, and other disasters related to climate change require rapid evacuation, forcing migrants to make split-second decisions about their material possessions in order to survive. A 2016 study by the U.S. Global Change Research Program found that many people who are exposed to climate disasters experience a plethora of serious mental health consequences, including depression, anxiety, and post-traumatic stress disorder. The same study also indicated that children, older adults, and economically disadvantaged individuals are at a higher risk for mental health consequences as a result of exposure to climate disasters. These groups face an additional factor of compounding stress as a result of forced migration which can create additional barriers to relocation that are particularly problematic when an environmental catastrophe posits immediate danger.
The social, political, and economic factors that hinder flight in the aftermath of an environmental crisis are apparent in Flint, Michigan, where the 2014 decision to reroute the city’s water supply through the lead-contaminated Flint River has left the city in an ongoing water crisis. This disaster exacerbated an exodus of residents that has left particularly vulnerable populations behind. The city has seen a population decrease of over 23% since 2000, a lingering symptom of long-term disinvestment that stems from the collapse of Detroit’s auto industry in the late 1960s. As auto industry jobs left the area, affluent white families fled Flint and moved into the suburbs, a textbook example of white Flight. Flint’s low-income residents and communities of color had limited pathways to relocation due to redlining, a racially discriminatory zoning policy that was widely practiced in mid-century America, economic barriers and were left with no choice but to stay. Financial distress has plagued Flint since this collapse: the 2020 average median income was almost $25,000 below the Michigan state average, which is already about $5,000 less than the national average. Buying enough bottled water to meet the weekly needs of your family is a mandatory and significant expense in Flint that tightens budgets and sets the ordeal of moving out of reach for many.
Money is not the only thing that forces people to become “involuntary stayers”. The daily burden of the water crisis has a time cost, for cooking, cleaning, and showering with bottled water require countless errands and energy. “The rhythm of the family is disrupted,” says Dr. Tam Perry, a professor of social work and anthropology at Wayne State University in Detroit. Dr. Perry has been studying the impact of the Flint water crisis on older adults since 2014. Through her ethnographic approach to research in Flint, she has observed the ways in which everyday rituals and cultural practices have been altered to demand more effort, such as the process of cooking collard greens, a vegetable with great historical and traditional significance in Black culture going back to the American civil war. Preparing collard greens is a “source of comfort” and a way for people to “hold onto their cuisine in the face of a crisis,” says Max Smith, a social worker and research assistant to Dr. Perry. However, due to the resource-intensive preparation process, the sheer number of plastic water bottles needed to wash and boil collard greens makes the recipe prohibitive for those who need to conserve water in order to literally survive. This illustrates the cultural damage that can be created by environmental catastrophes for “involuntary stayers” and “involuntary movers” alike, as migrants may also experience feelings of cultural severance upon moving.
Though the contamination of Flint’s water supply was not the direct result of climate change, it stands as a pertinent example of environmental racism and neglect of human rights in a low-income community that is akin to many places currently confronting climate-induced displacement. Warming climates and gradually rising sea levels will produce evacuations over a long-term scale and in this way, Flint provides an important case study to inform future community displacement planning and migration patterns. The burden of the climate crisis will continue to fall most heavily upon low-income areas and communities of color. Governments, NGOs, and other organizations working at the forefront of these issues must consider this disparity in their mitigation approaches to ensure that there is adequate support for vulnerable populations that may not otherwise see relocation as financially, politically, or physically feasible, even in the face of a climate disaster.
Emma Cooper is a Michigan native currently studying at the University of California, Berkeley. This discussion of the cultural toll of environmental disasters builds upon an interview with Dr. Tam Perry, a professor at Wayne State University in Detroit, Michigan who has been conducting research on the social impact of the Flint Water Crisis since 2015, and Max Smith, a social worker in the Detroit area, who served as a research to Dr. Perry on several projects.
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