The planet's first legal think tank dedicated to climate migrants
Category: The Archive
Contrary to common stereotyping, climate change does not solely constitute melting ice caps in Antarctica. Extreme weather conditions worldwide such as floods in Bangladesh, hurricanes in the U.S., and Australian wildfires are the result of human-caused climate change.
The Institute for Economics and Peace (IEP), a think tank that produces annual global terrorism and peace indexes, said 1.2 billion people lived in 31 countries that are not sufficiently resilient to withstand these ecological threats. At Earth Refuge, we hope to confront this crisis through targeted research, international advocacy and legal recourse.
This Archive is a collection of papers, think pieces and insights from legal experts, environmentalists, and anyone with experience or interest in this field.
If you would like to contribute, please submit your piece, idea or any questions you may have to [email protected]. The format for submission can be anything from a paper or a webinar to a podcast. The minimum length for written pieces is 400 words and must be submitted as a Word document. For articles, please hyperlink sources and for longer academic pieces, use end notes.
Thank you for all your support – here’s to securing a future for the planet and its people 🌏
In recent weeks, an increasing surge of migrants have attempted to cross the U.S.-Mexico border, many of them being unaccompanied minors. Authorities have placed these minors in overcrowded detention centers. American lawmakers cast blame for the inhospitable facility conditions across the partisan aisle. Congress has been unable to pass any legislation to change their country’s immigration system. Meanwhile, thousands of bald eagles have begun their pre-breeding migratory season. They are crossing the U.S.-Canada border by the thousands to build their nests in the trees of the Prairie Provinces and British Columbia.
We are led to believe that our material reality exists in an orderly fashion, that what we call nature organizes itself through confinement. Certain things belong in certain places. Any movement outside of these confinements is an anomaly. What is foreign is invasive. Sonia Shah, in her recently published book The Next Great Migration: The Beauty and Terror of Life on the Move, points to a dynamic world (increasingly so with the impacts of climate change), and the enduringly migratory humans that, only recently, have placed abstract obstacles between one another.
A Faulty Science
A large portion of Shah’s book uses an appeal to nature when it comes to the inherent migratory function found in almost all species. Originally, our collective science of taxonomy was based on location. We thought of habitats as closed containers, where each species has a specific function to fulfill and can grow only based on the availability of resources within that closed space. Early scientists believed ecosystems were in a constant stasis, and therefore, any species leaving one location and entering another spelled disaster. They saw migration as a threat to the balance, where according to Gause’s Law of Competitive Exclusion, if two species are competing for resources within a closed space, one will always destroy the other.
It isn’t difficult to follow the threads of these beliefs through the history of racial discrimination and immigration law, and the conflation of those laws as ethics. The father of taxonomy, Carl Linnaeus, based his 18th century classifications on the distinctions between species and perpetuated that certain racial distinctions between humans invoked a hierarchy. As pseudoscientific racial science gathered support in Western countries, certain racial traits were deemed undesirable, nonexistent borders between races were arbitrarily parsed, and new immigration laws based on the prevention of racial mixing surged. These sentiments carry into modern-day immigration law with Linnaean nationalism and neo-Malthusian practices underlying modern reactionary anti-immigrant rhetoric, (e.g., American right-wing nationalism and Italy’s Five Star Movement).
No Vivarium in Nature
Of course, these beliefs are not centered in much scientific ground. No ecosystems functions as a closed system. Individuals move in and out of populations and environments constantly. Invasive species are often more common and less malevolent than people think. What scientists nowadays are adopting is an ecology not based on origin, but one based on traits and contributions to an ecosystem. According to Shah, the reasons for migration are a complex myriad of genetic and environmental factors, but she stresses the question we need to ask shouldn’t be why people choose to migrate. Rather, we need to ask why migration inspires terror in natives. Migration is written into the essence of our species. We have been migrating as long as we have been around, for opportunity and for survival. And as Shah finds, migrating peoples are not inherently more violent, nor less intelligent, nor unhealthier, nor a constant hindrance on a host country’s long-term economy. What remains is the ideological and immaterial borders we construct at the cost of the real suffering of people.Despite titling her work The Next Migration, Shah spends the majority of her book investigating the past and affords little time speculating about the future. If one were to build off of her findings and predict the future of migration, one needs to keep in mind the expiration date on xenophobia. There is no such thing as a closed system, and as assimilation increases and distinctions between people diminish, people holding on to some idealized figment of a place will find their environment change around them.
Benjamin Chappelow is a writer and narrative designer in the Appalachian mountains, United States. As an immigration researcher and former Narrative Writer for the Climate Resilience Toolkit, he is focused on how the stories we tell dictate our behavior in an ecological crisis. When he is not writing, Benjamin is trying to teach his cat how to type so he won’t have to.
When you think of environmental contamination, what comes to mind? You’d be right to list examples of a polluted river, a skyline darkened by smog, or an oil leak in the ocean. These capture headlines, and they are an important part of the equation, but these viscerally visual images embody only a small part of the crisis we face. Much of the damage to the environment is harder to see and it is hiding in plain sight all over the nation. Take, for instance, Industri-Plex.
Early History
Industri-Plex is a 245-acre plot of land in Woburn Massachusetts, and it is emblematic of New England’s industrial heritage. This seemingly small plot of land is iconic as both the climax and the new beginning of a story stretching back hundreds of years. It is the tale of a small 1600s settlement, which would rise to an 1800s industrial powerhouse, become the fifth-most contaminated site in the country by the 1980s, and emerge anew in 2010s as a symbol of hope for a revitalized environment.
Nowadays, Woburn is a city of just over 40,000 inhabitants, with a diverse economic sector, but it wasn’t always so. For much of Woburn’s early history – as was the case with many cities, towns, and settlements in the 1600s – it was reliant on agriculture as its primary economic opportunity. Woburn began its first steps into its modern identity in 1648 with the opening of its first tannery. Shoemakers began opening up shop and, not long after, the demand for shoe leather led to the opening of more tanneries. To this day, Woburn’s school sports teams are called the Tanners, in recognition of this history.
Woburn’s location was a massive selling point for industry; it was just 12 miles north of Boston, and it had a large and steady supply of clean water from the Aberjona River. But circumstances improved even further for the City in 1803, with the opening of the Middlesex Canal and the Boston & Lowell Railroad in 1835; both created new means of transportation to and from Boston. Around the same time, just a few miles to the north, the American Industrial Revolution really kicked off in Lowell with the opening of large textile mills.
That industrial spirit was quick to spread across New England, and in 1853, Woburn Chemical Works was built in what would later be part of the Industri-Plex Superfund Site. The company manufactured chemicals used by tanneries and the textile and paper industries. Business was good at this time; the ease with which products could be transported to and from Woburn strengthened the economy and spurred industrial growth. With the onset of the American Civil War, the demand for shoes and boots skyrocketed and Woburn supplied that demand, further bolstering its economic success.
As the nation greeted the twentieth century, the tanning and chemical industries had cemented themselves as two hallmarks of Woburn’s industrial legacy. By 1875, Woburn had risen to be New England’s largest producer of leather and in 1901, a Woburn man by the name of Henry Thayer invented the process of chrome tanning. This revolutionary new process is faster than previous tanning methods and could cure leather in a single day. The process involved soaking leather in chromium sulfate, a mixture of chromium salts and acid produced by Woburn’s own chemical companies. The process also resulted in significant environmental damage as spilt chromium would leach into the ground and groundwater.
Companies in Woburn were also involved in the creation of glue. The process involved cooking raw animal hide and waste from chrome-tanned hide to extract the glue. The discarded hides and residues were dumped in various spots around the Industri-Plex site and would eventually become known as the four “hide piles.”
While companies came and went, the waste remained and continued to contaminate the land. Between the 1850s and the 1950s, the original Woburn Chemical Works was purchased and succeeded by a long chain of other chemical companies. The chain concluded with Stauffer Chemical Company purchasing Consolidated Chemical Company in the 1950s. Stauffer remained in operation until 1969.
In 1968, the Mark-Phillip Trust entered the scene with high ambitions of building a large industrial park over the yet-to-be-deemed Industri-Plex Superfund Site. They began purchasing parcels of land, which had been subjected to over one hundred and twenty years of industrial operations, and eagerly got to work on redeveloping the land. Development included the excavation of the old hide piles, which released noxious odors. What became known as the “Woburn Odor” was so bad that passersby on the highway, as well as residents from multiple nearby towns, would complain of the smell.
Creation of the Environmental Protection Agency and Superfund
Around this time, the country was beginning to take more notice of environmental contamination. Concerns over air, water, and land quality sparked then President Nixon to create the Environmental Protection Agency in 1970. National dialog around the environment reached a fever pitch in 1978, when the federal government purchased the homes and evacuated hundreds of people residing near Love Canal in Niagara Falls, New York. The horror of Love Canal was a significant factor in the 1980 creation of the Superfund program, which authorized the EPA to locate, investigate, and clean up the most hazardous materials nationwide.
Children are particularly at risk for adverse health effects from contamination. Image retrieved from Living on Earth
The Superfund program was and is an incredibly comprehensive response to one of the most complicated problems modern America has to face. It includes regulations on 761 substances, with almost 600 of them still in active use by industry around the nation. Superfund also includes one of the most aggressive liability frameworks possible under US law. This allows EPA to go after responsible parties and force them to clean up the mess they’ve left behind.
Over the next few years, EPA set out to identify the parties potentially responsible for the cumulative contamination within the Industri-Plex Site. Numerous tests and studies were conducted on the site, revealing heavy metals, organic wastes, and volatile organic compounds. These various forms of contamination weren’t just in the ground; they continued to move in the groundwater and were released into the air, posing a significant public health risk.
With the situation as dire as it was, the EPA settled on a plan to remediate the site in 1986. The plan involved negotiating with thirty-four past and present owners of land within the site to secure funding from them to clean up the contamination. While it might seem obvious at first glance that the corporations that contaminated the land would be held liable for cleaning it up, this was not the case at the time. EPA relied heavily on its new powers under Superfund to retroactively hold parties liable for the harm they left behind. In fact, Industri-Plex was a somewhat defining case for EPA.
Cleaning up Industri-Plex
Such significant contamination meant that the cleanup was going to be expensive, and some of the parties, including the Mark-Phillips-Trust, did not have the money to pay for their share in it. To resolve this problem, the Trust agreed to sell its land on site to reimburse the government for fronting some of the cleanup costs. Critically, this meant that it was the corporations, not the public, that were going to pay the cleanup.
As for the cleanup itself, under consent orders from EPA and the Massachusetts Department of Environmental Quality Engineering (DEQE, now renamed the Massachusetts Department of Environmental Protection or DEP) – Stauffer Chemical conducted numerous site assessments and studies of the surrounding geology. Their results confirmed the presence of organic and inorganic compounds in the soil. The results also showed that these contaminants continued to pose risks as they were migrating in the ground water and being released into the air as vapors.
Some of these hazardous materials could be treated on site, some could be consolidated and moved to a permanent disposal facility, but others were too expensive, too dangerous, or simply incapable of being removed or treated. Take, for example, the East Hide Pile. The hides would constantly release vapors, but when they were moved, the release of vapors (including the “Woburn Oder”) would substantially increase. Wherever you put a giant stinking pile of old animal parts, its going to cause problems.
So, environmental engineers devised a different solution. They installed what is called a “cap” over the hide pile, which would prevent the vapors from releasing into the air. On top of the cap, they placed a layer of top soil and planted grass on it to help root it in place. They then drilled monitoring wells and installed a vapor collection system so that they could make sure the protections were holding, and prevent leaching of contaminants into the groundwater.
Another hide pile on site. Below the grass, top soil, and clay cap the hide waste still remains. This is not a hill; this is mound of discarded animal parts. Image was taken by author in March, 2021.
Similar strategies were used for other hard-to-remove contamination on the site. As for the ground water, the responsible parties were obligated to capture and treat the ground water to prevent it from spreading the contamination further. This is a long and difficult process and is heavily reliant upon the availability of good data, and available methods of removal, as well as the geology itself.
In 1989, EPA, DEP, the City of Woburn, and the current and former landowners created the Site Remedial Trust and the Site Custodial Trust. These Trusts helped organize partnerships with private and public actors to help businesses return and remain on site during cleanup. Nowadays, Industri-Plex is diverse commercial and industrial area. The City’s largest employer, Raytheon, is set up within the borders of the Indusri-Plex Site. 45 other businesses also reside on site and cumulatively, the current Industri-Plex businesses generate $210 million in employment to the city annually, as well as property and sales taxes.
Industri-Plex Today
In 2020, a portion of the Industri-Plex Site was removed from the National Priorities list. Much of it remains under active monitoring and is subject to five-year reviews. The story isn’t over, but it has entered a new chapter. Woburn has been on the pulse of the American industrial experience since the beginning. When the industrial spirit swept the region, it was there that innovative new techniques for the production of leather and chemicals were created. It captured the quintessential nature of the American Dream, that a person with an idea and ambition could build something greater, and it helped vault America forward into the position it is in today. Of course, it was also there when the costs of that untamed ambition and the lack of understanding of the consequences, caught up to it and as a result, it was also on the front lines of America’s reckoning with environmental contamination. Today, Woburn continues to be on the cutting edge, standing as an example of what is possible when we commit ourselves to environmental revitalization.
New construction within the Industri-Plex Site. Investment continues to flow into the once fifth-most contaminated site in the nation. Image was taken by author in March, 2021
To be clear, despite the inspiring thread, this story is woven by over a hundred years of contamination. Over that time, people got sick, workers were taken advantage of, employers prioritized profits over people, chemicals were produced that contributed to contamination elsewhere, and millions upon millions of dollars were spent over decades ($70 million in the initial 7-year remediation alone) to get us to where we are today. Furthermore, the industrial practices that led to this reckoning are not gone. Corporations continue to attempt to subvert the government’s attempts to protect people and the environment. Agencies like EPA are a great improvement, but they alone will not solve the crisis facing our planet. And yet, this was an insanely complicated and dangerous situation, and people did come together to respond to it. Industri-Plex today should be seen as an example that change is possible, that absurd and creative solutions can work, and that the rewards of a healthy environment are worth the effort.
A picture is worth a thousand words; I believe this one is worth a lot more. Below is a field of solar panels, residing directly on top of the East Hide Pile. Quite literally, the present, standing atop the past, looking up towards the future.
The East Hide Pile was and is the largest such pile on site. Today it remains as a humbling reminder of the past, as well as a beacon of hope for the future. Image retrieved from Google Earth, Street view: 99 Breed Ave. Woburn, MA (March, 2021)
This article is part of our Spring 2021 collaboration with students from the International Human Rights Clinic at the Western New England University.
Andrew Hanna has always been fascinated by the “why” questions in relation to human behavior. That fascination pushed him to study psychology, sociology, and philosophy during my undergraduate studies. He concentrated in mental health services and worked for two and a half year as residential counselor. The work was transformative, traumatic, and ultimately marred by layers of structure issues which negatively impacted the health of the children he worked with. The frustration he felt with the mental health system pushed him to apply to law school. Andrew is now a 2L at Western New England University School of Law. It is his hope that through legal training, he can find a way to improve the systems that offer services to those in need.
Wildfires are not something most businesses on the United States’ West Coast can easily prepare for. They often occur with little to no warning, as they spread rapidly, and their path can be unpredictable. Even if a place of work itself is not at risk, employees’ homes and commuting roads are often damaged. On either side of highways, there are usually expensive fields and farmlands which have the capacity to burn rapidly. When highways, and railways, shutdown, employees often cannot make it to work. Once the fires have passed, the roads may remain closed due to the pavement’s temperature and the debris blocking the paths. When neighborhoods and towns are evacuated, employers lose a majority of their workforce, making it difficult for them to run their business. [1]
The Farming Industry
During the start of the COVID-19 pandemic, farmers were considered essential workers, which meant that they could continue to operate, but often under less-than optimal conditions. Due to the overlap between the pandemic and fire season, many migrant workers had left the California farming areas, which made for a scarcity of available employees. This meant a heavier workload and less productivity for the remaining workers. Once fruits and vegetables are ready to be harvested, there is usually only a window of a few days within which to pick them before they are rendered unmarketable.[2] This is what happened to a lot of products in California this season because the workforce was just not available.
The workers who were still farming faced a harsh reality. They often worked in temperatures over one hundred degrees Fahrenheit, for shifts spanning twelve-hours or more.[3] There was also a K-95 mask shortage, which risked the safety of the employees and the products being harvested. Many workers suffered heat-related injuries due to the extreme heat and the physical toll of the labor.[4] Farmers were often woken up in the middle of the night because they needed to move their cattle somewhere safer or because they themselves needed to evacuate.
When smoke and flames do destroy fields, the chemical composition of the soil is changed. Farming becomes more challenging and can even change the quality of the plants that are able to grow. The destruction of pastures also presents a challenge for farmers as it is the main source of sustenance for the livestock. Buying alternative food sources for livestock is expensive and oftentimes not worth the expense, forcing ranchers to slaughter early to avoid unnecessary expenses.[5] In the event that pastures are saved, herding the cattle can be difficult. The fires can destroy fences, some of which are multiple miles long (to fulfil the purpose of the enclosure of large plots of land). Transporting thousands of animals back to safe pasture is time-consuming, expensive, and physically demanding.[6] Rebuilding the fences is also a costly endeavor and time-consuming, but it must be done as quickly as possible so that the cattle are not lost.[7]
The Timber Industry
Scientists say that fossil fuels create a more considerable fire risk which could lead to the end of the timber industry, hurting many rural families who depend on the forests for a living.[8] Oregon is the number one producer of lumber in the United States (US), but even their trees take a very long time to grow. It can take over thirty years before a tree reaches a size appropriate for cutting.[9] A wildfire in Oregon destroyed a plot of 25-year-old trees at the Seneca Sawmill. Almost all of their younger trees were wiped out, and 25 years of work and care went to waste.[10] While many people heat their homes with oil and alternative energy, many Americans – especially those in rural areas – rely on lumber to stay warm in the winter. It is also used to make homes, furniture, and other products. The newly planted trees will take about 40-60 years before they can be harvested, which could create future layoffs and economic setbacks for the timber industry.[11] The logging industry will also be impacted, as with any issue of supply and demand: shortages will create a hike in prices and a more competitive industry, especially when up against timber yards in other states that are not facing wildfires.[12]
The Restaurant Industry
The restaurant industry has also suffered as the result of the smoke from wildfires, and the impact of COVID-19 preventative measures. Both of these factors have led to a reduction in tourism, which is what many of the smaller restaurants in California and Oregon rely on for businesses. COVID-19 regulations forced many restaurants to close their doors to inside seating and instead open up to outside seating. However, the smoke from the wildfires made the air outside unsafe as well. Even when the fire diverts and does not physically destroy buildings, the smoke makes the air quality in surrounding areas unsafe.[13] Restaurants in San Francisco have often had to close over the weekend, despite it being their busiest and most profitable time, because the air quality was too poor to safely host outdoor dining.[14]
It is important to note that restaurants and cafes that are Asian-run, or that serve Asian food have faced an increased decline in business since the start of the pandemic in February of 2020 due to a myriad of circumstances.[15] Travel restrictions and tax season meant that people had been eating out less, but COVID-19 misinformation surrounding the origins of the virus in China has also played a large role in increased xenophobia and discrimination towards the Asian community and restaurants. For instance, the Liang’s who own a small noodle bar to consider closing their doors.[16] They faced over a 50% drop in orders within just two weeks, and their situation is not unique – they are one of many businesses impacted in this way.
While customer orders were down, some restaurants kept busy feeding those who were protecting the community.[17] Tyler Florence, a chef from the World Food Kitchen, joined local chefs in Sonoma County, California to help feed those in need during the shutdown. While the restaurants were not open for business, they helped feed first responders and people forced to evacuate.[18] On one Sunday, they served over 6,000 meals to people in the area, including firefighters who spent over 12 hours working a shift and were too exhausted to cook. [19]
Fighting wildfires and the pandemic simultaneously have created competing risk analyses. Controlled burns are one way in which the government attempts to prevent wildfires. It helps in removing debris and other materials that could spread wildfires by burning them under close supervision. Even if under control, this is still a fire, and creates smoke which intensifies the already poor air quality in California’s valleys.[20] This can cause complications for older citizens and those with lung conditions. Poor air quality has led to an increase in hospitalizations, when health providers are already stretched thin due to COVID-19.[21] In response, the US Forrest Service decided to halt planned controlled burns so as not to worsen air quality conditions. However, the Bureau of Land Management continued their control burns as planned to prevent more wildfires in the future.[22] There are trade-offs to all of the decisions being made, but the public’s safety remains the top priority.
Conclusion
Restrictions on dining, travel, and social distancing have taken their toll on businesses. The pandemic safety precautions combined with environmental disasters – such as the wildfires and resulting smoke – have increased the struggles of many citizens living on the West Coast of the US. Farmers have had incurred extra costs trying to repair the damage to their soil, property, and crops/ livestock. This increases the risk of food shortages and farmer’s leaving the profession for a more economically sustainable career. The timber industry has suffered setbacks with the burning of their trees, which will take decades for them to recover, creating shortages in the not-too-distant future. Many Americans rely on wood to build and heat their homes. No industry has seem to escaped unscathed as the restaurant industry has also struggled with Coivid-19 protocols as outside dining is no solution when the outside air is unsafe.
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.
[2] Kelly Haddock, California Wildfires Effect on Agriculture, (Aug. 25, 2020), https://georgia.growingamerica.com/features/2020/08/california-wildfires-affect-agriculture
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.
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.
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.
We are looking ahead, as is one of the first mandates given to us as chiefs, to make sure every decision we make relates to the welfare and well-being of the seventh generation to come, and that is the basis by which we make decisions in council. We consider: Will this be to the benefit of the seventh generation. This is a guideline.
The 2019 student ‘Strikes 4 Climate Action’ in Australia were a testimony to the urgency of redirecting the climate change discourse to the foreground of political and judicial decision-making. The current warming trend, as was outlined in the IPCC Fifth Assessment Report, is significant because “most of it is extremely likely to be the result of human activity since the mid-20th century and proceeding at a rate that is unprecedented over decades to millennia”.[2] The scientific evidence is unequivocal. If natural habitats are not protected to the extent that the integrity of all their ecological functions are maintained, we are facing a dim future. As existing in a temporal dimension, precautionary action to protect the ‘right to a healthy environment’ must be taken in the face of uncertainty.
Thousands of primary and secondary school students marched the streets in cities across Australia, attesting that “the youth are rising, we are not compromising”.[3] And they certainly shouldn’t. The judiciary has a prevailing role in responding to their plea. It is with this contention that this paper will argue that all generations – including children and legitimate representatives of future persons – should be regarded as co-equal in court procedures. In extending the common law rules of standing to all generations, climate litigation will finally have its place in court. This form of intergenerational equity will set new enforceable standards for governments to act as fiduciary trustees in the protection of our shared environment. The outcome will be the reduction of CO2 emissions and slowed or reversed species endangerment.
Scope and Definitions
I will narrow my analytical scope to the role of domestic courts in common law jurisdictions, with an emphasis on Public Law in the United Kingdom. For argumentative purposes, this paper will heavily draw ideas, decisions and principles from other jurisdictions as climate change is a phenomena with consequences that transcend institutional boundaries. The analysis will mostly be anchored in legal philosophy, and will thereby be less technical in nature. The first section of the paper will address our relationship to the environment, followed by our relationship to future generations and lastly to governments. This essay purports to humbly act as a policy paper in appealing to judges, particularly in the United Kingdom, to amend the common law rules of standing. Judgements that contemplate intergenerational elements not only bolster environmental standards, but also exert a persuasiveness that eclipses state borders.
PART I: OUR RELATIONSHIP WITH THE ENVIRONMENT
All of our actions and inactions affect the global ecosystem and its intricate webs. As humans, we have the capacity to shape and destroy our own natural habitat. According to the I=PAT equation, the environmental impact (I) is caused by a very large and ever-increasing human population, the increase in economic growth per capita affluence (A) and the application of resource-depletion and pollution technology (T).[4] The results exposed that the environmental change sweeping the world is occurring at a much faster pace than previously thought. The United Nations High-level Panel on Threats, Challenges and Change has officially cautioned environmental deterioration as one of the ten most serious threats to the human race.[5] Efforts must be made on all fronts to counteract the irreversible damage done to Earth – a planet we all call home.
Impact of Climate Change
The current statistics concerning climate change are alarming and “no longer academic”.[6] We are confronted with the depletion of our resources, the destruction of entire ecosystems and habitats, the extinction of wildlife and a distressing increase in air pollution. The Global Environmental Outlook’s Regional Assessments paint a bleak picture of the severity of the issue. In Latin America, “nitrous oxide emissions increased by 29% between 2000-2010”.[7] In the Pan-European region, they found that “land-use related emissions, nitrogen oxides and particulate matter persist at high levels and are still increasing”.[8] While overall greenhouse emissions have reduced, the increasing per-capita consumption of final goods and services still remains a “major obstacle to a low-carbon economy”.[9] On a global scale, around half of the world’s original forests have disappeared, despite their integral role in producing oxygen. Due to their ability to act as a carbon sink, it is estimated that 15% of greenhouse gas emissions are the result of deforestation.[10] The quality of our natural atmosphere is severely affected by these changes.
This unbalanced relationship with the environment has led to a “decline in agricultural productivity; increased risk of floods and droughts; threats to food security; increased demand for water; and negative effects on biodiversity”.[11] In North America, global warming “exacerbated the five year drought in Texas by 15-20%” and the 2010 heatwave in the northern hemisphere resulted in 54,000 cumulative excess deaths”.[12] Climate change is exerting multiple interlinked pressures and health threats upon society and “it is clear that the frequency of such events will increase as the climate warms”.[13] Rising temperatures are shifting our planet into an ominous state that is rapidly becoming less hospitable to human life. Costello described climate change as the “largest health threat of the 21st Century”.[14] In this way, all members of the human family “have an interest, and a responsibility, to act to ensure we protect what we all value: a healthy future for both people and nature”.[15] The global average temperature cap has been set by the United NationsParis Agreement to be well below 2°C.[16] Remaining under this stipulated standard is the crux of the challenge.
Right to a Healthy Environment
A right ensuring that such a future is attainable can appear in many different forms and may be invoked in circumstances where a specific environmental violation incurs serious health consequences. There is a universality claim to such an argument, as our relationship with the natural environment is part and parcel of our existence. A right formed on such a basis transcends cultural relativism, political ideologies, and social constructs. Nature is fundamental, if not indispensable to our survival (at least until we invent an artificial alternative). Ergo, this paper is written on the premise that even if the terminology adopted differs across contexts, the right to a sustainable environment is enshrined in our laws in one format or another. Since this right is a natural right we enjoy as members of the same species, in the case that it is only vaguely construed, there is a strong presumption that it should be read in favor of its existence. Therefore, despite the United Kingdom not expressly providing for a positive right to a healthy environment, an individual claim to a violation brought on these grounds is still reasonable due to its universal potency.
References to rights that have an indirect bearing on the environment can be found in both domestic and international legal instruments. Whilst the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR) do not explicitly mention the right to a healthy environment per se, it can still be inferred through a liberal analysis of the language adopted. An example is the ‘right to life’ mentioned in Article 6 of the ICCPR.[17] In the Indian case Subhash Kumar v State of Bihar, the judges extracted the environmental element in declaring “that the right to a healthy environment was an integral part of the right to life”,[18] enshrined in Article 21 of their Constitution.
Another strand of evidence in support of its universality can be found in United Nations’ sponsored declarations and conferences. The Stockholm Convention on Persistent Organic Pollutants expressly announced in 1972 that “humans have the fundamental right to freedom, equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well-being”.[19] Twenty years later, the Rio Declaration on Environment and Development similarly stated that “human beings are entitled to a healthy and productive life in harmony with nature”.[20] Such a long-standing standard in customary international law upholds the assumption that despite the lack of a well-defined right, all persons merely by virtue of their humanity are entitled to an ecologically sound environment and the natural resources it offers. As Sax pointed out, “certain interests are so particularly the gifts of nature’s bounty that they ought to be reserved for the whole of the populace”.[21]
Other manifestations to a right to a healthy environment have also developed in the course of judicial decision-making. In a famous judgement in 1997 concerning the Gabcikovo Nagmaros Project, it was held that due to the global development of new environmental norms, both states, namely Hungary and Slovakia, “are equally entitled to the preservation of their human right to the protection of their environment”,[22] for “it is a sine qua non for numerous human rights such as the right to health and the right to life itself”.[23] Likewise in Columbia and South Africa, domestic courts held the right to a healthy and sustainable environment to be categorically absolute.[24] The Colombian Constitutional Court coined it as being a “precondition to life itself and must be guaranteed even in the face of uncertainty as to the risk of violating the right”.[25] From these examples flows the rationale that a right to a healthy environment is universal and imprescriptible in nature. Accordingly, its legal force can also triumph in the United Kingdom.
Finally, all generations should enjoy equal access to its benefits. Future inhabitants are in this instance defined not as an abstraction, but as consisting of individuals, that are human beings; that is, we can safely assume that they share the same properties to humans today.[26] Their mere incapacity to legally invoke the right to a robust environment, does not affect the existence of such a right. It is thereby not only universal, but also intergenerational. This paper is not committed to the claim that “future generations by definition do not exist now and they cannot now, therefore, be the present bearer or subject of anything, including rights”.[27] Instead it will adopt an unconstrained view that the human right to healthy environment is applicable to all of mankind; past, present and future.
PART II: INTERGENERATIONAL JUSTICE
The previous section established the extremity of the climate change crisis. Naturalist David Attenborough goes so far as to suggest that “the collapse of civilization is on the horizon”.[28] It also concluded that all of mankind has a right to a healthy environment. How this affects our relationship to future generations will be addressed below.
Two initial points must be made. First, due to the fact that the most destructive effects of climate change are yet to come, children and future generations will experience its most lethal impacts. As they too have a right to a secure environment, adequate climate action is just as much, if not more, their concern than it is ours. Despite this, the voices of children and future generations are mostly left unheard. This paper makes an attempt to address this issue.
Second, a correlating duty to protect the environment naturally derives from the inference that a right to a healthy environment exists. Domestic courts can fulfill this duty in setting stringent environmental standards through public interest litigation. At its core is the “right to demand protection from public authorities in case of any breach or compromise or right”.[29] With such a judicial system in place, measures are available to the public if authorities mishandle the pursuance of a sustainable ecosystem. Provided that the “right to effective judicial protection is one of the cornerstones of societies governed by the rule of law and judicial access is a key aspect of that right”,[30] it has immense power to effectively serve the best interests of the public.
Issue of Standing
It is of great concern that domestic courts in the United Kingdom are currently unable to hear climate change cases on the ground that there is no clear correlation between a plaintiff and the injury caused by rising temperatures. It is either a) that the intended plaintiff does not have sufficient interest in the particular injury, or b) that those who will suffer the injury are unable to be identified as plaintiffs. The issue at hand is one of legal standing (locus standi), which refers to the ability of a particular individual or pressure group to bring legal action in a court of law. It is a matter of “threshold inquiry in the determination of the appropriateness of judicial intervention”.[31] In other words, locus standi is “a place of standing; standing in court; a right of appearance in a justice or before a legislative body on a given question”.[32] Fundamentally, it is about the right to be heard.
The Injury
The first issue is concerned with linking the injury to the legal or natural person. Section 31(3) of the Supreme Court Act 1981 in the United Kingdom provides that “no application for judicial review shall be made… unless… the applicant has sufficient interest in the matter to which the application relates”.[33] This is interpreted more liberally for pressure groups like Greenpeace and Friends of the Earth amongst others. Individuals must demonstrate that they have a sufficient interest in the decision they are preparing to challenge.
There is an inherent inability to prove interest in a case where the violation is concerned with environmental degradation or climate change. Due to its complex nature, it is extremely difficult to prove how exactly the ‘injury’ has affected an individual. The applicant must normally “show that the challenged conduct has caused that injury in fact”.[34] However, as there are many different layers of impact, responsible public bodies may not be held accountable for a specific course of action that has the capacity to cause serious consequences for a large group of people in the future.[2]
The presence of this obstacle is clear in the following cases. In Balmer-Schafroth and Others v Switzerland, “applicants failed to show that the operation of the power station at issue exposed them personally to a danger that was not only serious but also, specific, above all, imminent”.[35] A similar conclusion was drawn in Stichting Greenpeace v EC Commission in which the Court of First Instance declared Greenpeace’s action inadmissible, as it was not directly involved with the controversy in question. It was held that “while environmental protection is one of the fundamental objectives of the community”,[36] it does not automatically confer a right on a natural person that is enforceable by law. The environmental violations were not only too remote, but also not deemed to be an issue of public importance at the time.
The difficulties in establishing a causal link between the commission or omission of the public body and the individual or group can lead to courts declaring a case inarguable. Given the inability to establish a direct aggrievance, actions of environmental degradation which are practiced and condoned can be overlooked by the judicial branch on the ground that the violation itself has not yet manifested into a danger grave enough for the party in question to allow court proceedings to commence. As per Lord Denning, “the court would of course not listen to a mere busybody who was interfering in things which did not concern him”.[37]
The Plaintiff
The second issue is concerned with the inability of the standing doctrine to link environmental harm to children and future generations. Despite the inevitable impact of climate change circumventing generational boundaries, youth without representation and the unborn are unable to voice their complaints in court. The future person does not fit into the “regular” concept of a legal person, as the law does not yet have the capability to address and represent an entity which does not yet exist.[38] In the case of Faroque v Bangladesh for example, the court whilst weighing the issue of a pollution-free environment, did not grant locus standi to future generations, simply on the grounds that the Constitution of Bangladesh does not expressly provide them with any rights.[39]
The shortcoming of the courts in articulating the definition of a non-subject has meant that there is no enforceable duty of care for the health and wellbeing of future generations. In this legal reality, the right to a healthy environment, which one pertains by virtue of being a person, cannot be invoked insofar as there is no actual person who may benefit from it. This strict view of the principle that legal personhood is “based on the biological birth and death of the human being”[40] violates the basic fundamental assumption that there will, all singularities aside, be a future generation. In the face of climate change, this narrow understanding of locus standi – that the ‘individual’ in the Supreme Court Act 1981 is merely defined as legal construct rather than a legal person – must be overcome, This will allow room for alternative interpretations.
locus standi for Future Generations
The way in which both of these encumbrances can be addressed appropriately when considering climate change is through the integration of intergenerational justice into the domestic law of the United Kingdom. It will not only urge “agents to act now on the basis that the antecedent will at some point in the future come true”,[41] but will also establish a link between the plaintiff and the injury so that legal representatives of future generations will be granted the capacity to institute and commence legal proceedings. In recognizing that justice must be achieved across generations, courts can effectively play a role in preserving the future state of the environment from current impairment. This is a normative discussion and will be based on the premise that “in order to care about the future it is necessary that there be a future”.[42]
Philosophy of Intergenerational Justice
To avoid animosity, I will address the ethical element of intergenerational justice and ask whether we have a moral duty to ensure that the right to a healthy environment will also be enjoyed by future generations; otherwise it may be difficult to justify a sacrifice for the sake of a future which has not yet manifested.[43] While there is a strong presumption that there is such a duty, it must first be briefly defended that there is also a general willingness to support the preservation of the existence of humankind. I will base my value judgement on two grounds: that the “human species should survive, and that future generations are entitled to live in dignity”.[44] This notion fortunately “strikes a deep chord with all cultures, religions and nationalities”.[45]
First, from a moral standpoint, it can be assumed that the ‘human species should survive’. As Professor Weiss argued, “the interest in survival is deeply rooted in the thinking of all peoples”.[46] In this way, there is a greater moral force than a mere obligation of present generations.[47] As discussed in the previous section, it has become apparent that humans now have the capacity to shape their natural surroundings on such a scale that warrants scrutiny. We are changing our global environment irreversibly, with “profoundly damaging effects on the robustness and integrity of the planet”.[48] To an extent, humans can now “collectively decide to let the human race peter out”.[49] In the past we only had little discretion over the natural process in which humans replenished the earth. These developments in our powers inevitably changed the nature of human action.[50] With the fate of mankind in our hands, comes the moral responsibility to ensure its survival, at least in part.
Secondly, it also seems fair to assume that ‘future generations are entitled to live in dignity’. For this quality of life to manifest, three basic principles of intergenerational equity must be satisfied according to Weiss: the conservation of options, conservation of quality and conservation of access.[51] If left ignored, we are “threatening the survival of humankind under conditions worthy of human beings”.[52] The reason that we are morally obliged to play an implicit role in shaping their future is that there exists an unspoken “partnership among those who are living, those who are dead and those who are to be born”,[53] as was phrased by Edmund Burke. At present we are holding the earth on trust for all generations to come, just as previous generations did for us, and it is by virtue of this relationship that we must “realize and protect the welfare and well-being of every generation”.[54] As Weiss elegantly put it, “all generations are inherently linked to other generations, past and future, in using the common patrimony of earth”,[55] and it is with this regard that we can say that the right to a healthy environment spans across all generations.
Intergenerational Justice in International Law
Intergenerational justice is not only normative in nature, as versions of it can also be found in international treaties and conventions. The UN Framework Convention on Climate Change (UNFCCC), for example, has a clear provision for the principle of intergenerational equity. Article 3 states that “the parties should protect the climate system for the benefit of present and future generations of humankind, on the basis of equity and in accordance with their common but differentiated responsibilities and respective capabilities”.[56] Similarly, the Brundtland Commission maintains that “sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs”.[57] It was only a year before this report was released that there was a quest for “all Governments and peoples of the world to discharge their historical responsibility, collectively and individually, to ensure that our small planet is passed over to future generations in a condition which guarantees a life in human dignity for all”.[58] Evidently, the concept of intergenerational equity is not novel, and is instead deeply anchored in customary international law.
Intergenerational Justice in Case Law
The above analysis creates a strong argument for the introduction of intergenerational equity into domestic bodies in the United Kingdom. Internationally, some cases have already been successful in pleading the interest of future generations. In Diego Cali & Figli Srl v Servizi Ecological Porto Di Genova SpA, the ECJ stated that the prevention of pollution serves the interests of not only current, but also future generations.[59] In Nauru v Australia, the ICJ linked the rights of future generations to the liability for environmental damages. [60] Most importantly, in Minors Oposa v Department of Environment and Natural Resources in the Philippines,[61] the courts allowed a claim based directly on the concept of intergenerational responsibility. These cases show that there is already a willingness to contemplate the welfare of all generations in court decisions.
I will briefly focus on the Minors Oposa case, as the decision by the Philippines Supreme Court has the conceptual capacity to serve as a transferable model to common law jurisdictions. The facts of the case are as follows: the plaintiffs sought an order from the government to discontinue timber licensing agreements, as the grave environmental damages resulting from deforestation were “causing adverse effects, disastrous consequences, serious injury and irreparable damage … to the Plaintiff minor’s generation and to generations yet unborn”.[62] In response, the judges held that future generations should also be warranted legal personhood in the eyes of the court. They reasoned that “we find no difficulty in ruling that they can, for themselves, for others of their generation and for succeeding generations, file a class suit. Their personality to sue in behalf of succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned”.[63] Intergenerational environmental interests were deemed sufficiently worthy of judicial protection.
In taking this strong position, the Philippines has thus welcomed climate litigation into its legal narrative. In doing, it plays an active role in reducing the detrimental effects of climate change. In granting locus standi to legitimate representations of future generations the Supreme Court has successfully imputed the missing link between the plaintiff and the injury. Applicants are now affected by the violation in question and thus have sufficient interest in the matter. Further, the next generations who will bear the brunt of the climate change impact will have a voice in court so that representatives will be granted the ability to defend the right to a healthy environment in their name.
Climate change is forcing a paradigm shift in the way that our eco- and legal-systems cooperate. The judgement passed down by the Philippines Supreme Court is a commendable decision in whereby the courts effectively responded to emerging norms. This paper encourages all common law jurisdictions to follow in their footsteps. It is only if future generations can hold public bodies accountable that climate change can be addressed with the judicial attention it deserves.
Government and Intergenerational Equity
Once intergenerational responsibility is enshrined as a legal principle, in which all three parties (non-voting youths, adults and future generations) are contemplated as co-equal, a stricter standard for the government to protect the environment can then emerge. As per the Public Trust Doctrine, the sovereign holds the environment on trust for public use and owes the public the fiduciary duty to protect and maintain the natural resources it provides.[64] When a “state holds a resource which is available for the free use of the general public, a court will look with considerable skepticism upon any governmental conduct which is calculated … to subject public uses to the self-interest of private parties”.[65] Some interests, such as that of a healthy environment, are so intrinsically important to every citizen that “a government may never alienate trust property by conveying it to a private owner and that it might not affect changes in the use to which that property has been devoted”.[66] There is no reason why this judicial protection of public resources we enjoy today should not also extend to those who will be forced to bear environmental devastations greater than what we can realistically comprehend today. With such an observation in mind, it is imperative that future generations are given a voice in court proceedings, because it is only then that the preservation of the environment will be treated equitably alongside economic or short-term exploitations.
Offering future generations locus standi not only invites climate litigation into the courtroom but will also put pressure on governments acting as trustees to abide by higher environmental protection standards. In Australia, the judges in Gray v The Minister for Planning actively extracted the meaning of intergenerational equity from the Environment Protection and Biodiversity Conservation Act 1999 [67] and used it to assert the responsibility of the government to “ensure the health, diversity and productivity of the environment”.[68] Evidently, the intergenerational preservation of the environment is already being consulted across various authoritative institutions, both domestically and internationally. Implementing the principle of intergenerational equity into legal proceedings in the United Kingdom would in theory be no more than a natural extension of the courts’ compliance with climate action.
PART III: LIMITATIONS
Reservations about the consequences of allowing future generations to legitimately gain entry into the sanctuary of the courts must also be made. Before judges can even begin their attempt in accurately predicting the particular consequences of climate change that will violate the ‘right to a healthy environment’, the courts will have to unanimously agree that future agents will in fact exist and what their identity will be. They must set aside the view that “unborn people cannot have anything as they do not exist”.[69] Without much deliberation, there is certainly an inherent difficulty in deducing steadfast conclusions from mere predictions. This is a very substantial flaw in the theory of intergenerational justice.
Sanklecha provides three requirements that must be fulfilled before intergenerational justice can be considered in its full capacity. Firstly, we must assume that there will “be agents who exist in the future at all”,[70] because if there were none, it would not be possible to assign a duty to present inhabitants of the planet to preserve it for the next. Secondly, these agents “must be of a certain sort”[71] that will demand rights that are synonymous to what understand to be fundamental. This means that the courts will have to predict their interests. Are the unknown unborn entitled to the exact same biological diversity that we currently enjoy? While for example, “depriving future generations of breathable air … would indeed be a violation of their moral obligations to posterity”, “depriving them of the opportunity to see live Dodos” might not be.[72]
Furthermore, their needs for survival may be drastically different to those we classify as necessities today. Lastly, the courts must make an assumption about the number of agents. Only if meaningful conclusions can be drawn from these predictions of the future of mankind will we be able to justify the duties that the people of today will have towards the people of tomorrow.
CONCLUSION
Tackling this environmental crisis rests upon the commitment to equality across generations. Quoting the 1972 Stockholm Conference on the Human Environment, we have a “responsibility to protect and improve the environment for both present and future generations.” At a time when children are protesting across the globe in the name of climate action, institutions are urged to finally define and implement their promise. It is not merely about sporadic protective measures, but about a long-term solution to the destabilization of the earth’s climate system. As Albert Einstein said, “we cannot solve problems by using the same kind of thinking we used when we created them”.[73] Holding his words in high esteem, we must finally allow future generations an opportunity to voice their preferences for the future in the courts of law. What the foregoing shows is that intergenerational equity is not only a moral postulate but a legal framework for environmental change.[74] Enshrining this principle in the United Kingdom as an element of locus standi has the power to reflect an ethos that is planetary in scope.
Stephanie Hader is the Co-founder and Director of Earth Refuge. She is a Penn LLM Graduate with experience in drafting government reports for both the Australian and German Parliament. Stephanie also holds a Juris Doctor from the University of Hong Kong.
[3] Albeck-Ripka, L. (2018) Climate Change Protest Draws Thousands of Australian Students, New York Times
[4] Sherbinin, A., Carr, D. Cassels, S. & Jiang, L. (2009) Population and Environment, Annu Rev Environ Resour, Vol 32
[5] Lonergan, S. (1998) The Role of Environmental Degradation in Population Displacement, Environmental Change and Security Project Report, Issue 4, 11
[6] Weston, B. and Bach, T. (2009) Recalibrating the Law of Humans with the Laws of Nature: Climate Change, Human Rights, and Intergenerational Justice, Vermont Law School Legal Research Paper Series, No. 10-06, 60
[7] UN Environment (2016) Latin American Region, Global Environment Outlook 6 Regional Assessments, 35
[8] UN Environment (2016) Pan-European Region, Global Environment Outlook 6 Regional Assessments, 66
[11] Kebede, A.S., Dunford, R., Mokrech, M., Audsley, E., Harrison, P.A., Holman, I.P. and Wimmer, F. (2015) Direct and indirect impacts of climate and socio-economic change in Europe: A sensitivity analysis for key land-and water-based sectors, Climatic Change 128(3-4), 1
[12] Safronov, A., Fokeeva, E., Rakitin, V., Grechko, E. and Shumsky, R. (2015) Severe wildfires near Moscow, Russia in 2010: Modeling of carbon monoxide pollution and comparisons with observations
[14] Costello, A., Abbas, M., Allen, A., Ball, S., Bell, S., Bellamy, R., Patterson, C., Friel, S., Groce, N., Johnson, A. et al. (2009) Managing the health effects of climate change, The Lancet
[15] Carrington, D. (2014) Earth has lost half of its wildlife in the past 40 years, says WWF, The Guardian
[16] United Nations Framework Convention on Climate Change (2018) The Paris Agreement
[17] United Nations (1966) Article 6 of the International Covenant on Civil and Political Rights
[18]Subhash Kumar v State of Bihar (1991) High Court of Judicature at Patna Criminal Miscellaneous No 55717
[19] UNEP (1972) Stockholm Convention Protecting Human Health and the Environment from Persistent Organic Pollutants
[20] UNESCO (1992) The Rio Declaration on Environment and Development
[21] Sax, J.L. (1969) The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, Michigan Law Review, Vol. 68, 484
[22]The Gabcikovo Nagmaros Project Hungary/Slovakia (1997) Reports of Judgements, Advisory Opinions and Orders, International Court of Justice
[24]Fundepublico v Mayor of Bugalagrande and Others (1991) held in favor of the right to a healthy environment as a fundamental human right. The court made reference to rights contained in the Colombian Constitution and also to “recent developments in international law”. In South Africa, Wildlife Society of Southern Africa and Others v Minister of Environmental Affairs and Tourism of the Republic of South Africa and Others (1996), the right to healthy environment was affirmed in that the court stated that the applicants had locus standi to bring the action pursuant to sections 7(4)(b) and 29 of the Interim Constitution of 1993.
[25]Fundepublico v. Mayor of Bugalagrande and Others (1991) Judgment No. T-4 15/92, First Chamber of Appeal, Constitutional Court, Santafe de Bogota, Colombia
[26] Weiss, E.B. (1990) Our Rights and Obligations to Future Generations for the Environment, The American Journal of International Law, Vol. 84, No. 198, 205
[27] De George, R. (1981) The Environment, Rights, and Future Generations, In Responsibilities to Future Generations, Environmental Ethics, New York: Prometheus Books, 161
[28] Carrington, D. (2018) David Attenborough: Collapse of Civilization is on the Horizon, The Guardian
[29] Pecaric, M. (2012) Public Interest and the Question of locus standi, Belgrade Law Review, No. 3, 318
[34] Lee, J. (2000) The Underlying Legal Theory to Support a Well-defined Human Right to a Healthy Environment as a Principle of Customary International Law, Journal of Environmental Law, 331
[35]Balmer-Schafroth and Others v Switzerland (1997) European Court of Human Rights
[36]Stichting Greenpeace v EC Commission (1998) European Court of Justice
[37]R v Paddington Valuation Office ex parte Peachey Property Corporation Ltd (1965) 2 All ER 836
[38] Haaf, L.T. (2016) Future Persons and Legal Persons: The Problematic Representation of the Future Child in the Regulation of Reproduction, Laws Vol. 5, No. 10
[39]Farooque v Government of Bangladesh (2001) National High Court, Source UNEP
[41]Sanklecha, P. (2017) Our obligations to future generations: the limits of intergenerational justice and the necessity of the ethics of metaphysics, Canadian Journal of Philosophy, Vol. 47, Issue 2-3, 232
[44] Gündling, L (1990) Our responsibility to future generations, American Journal of International Law, Vol. 84, Issue 1, 209
[45] Weiss, E.B. (1992) In Fairness To Future Generations and Sustainable Development, American University International Law Review, Vol. 8, Issue 1, 20
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