7 minute read
The Cancer of Climate Change Law: Challenges of Pre-Existing Legal Formalism are Proving Cumbersome by Luke Gibbons
The Cancer of Climate Change Law: Challenges of Pre-Existing Legal Formalism are Proving Cumbersome
By Luke Gibbons, Contributing Writer, BCL Candidate at the University of Oxford
Advertisement
The relationship between the courts and climate change law is far from a love story. It is more akin to a complex array of tangentially interconnected romantic affairs, where the exact ending and crescendo of the story is yet to materialise and a continuous cliff hanger looms large. In contrast to a love story, climate change as a phenomenon is more accurately conceptualized as the cancer of the earth, and climate change law as the cancer of judicial decision making. What is contended by this is that climate change presents unprecedented, ever-metamorphosing challenges to pre-existing judicial cognition, much like the problems mutating cancers pose to medical experts. These challenges have given climate change law a broad scope, cross-cutting almost every legal subject area and challenging the anachronistic compartmentalisation of discreet bodies of law. Adherence to strict legal formalism has caused great problems for the judiciary in addressing the spread of the cancer of climate change and new lines of reasoning are urgently required.
The Cancer Has Spread Far and Wide
In answering the question as to what climate change law is, the instinctive answer is to point to the UNFCCC, the Kyoto Protocol and the Paris Agreement. However, this analysis is not only superficial but also incomplete. Although these instruments play a critical role in framing the issue and the science behind policy, such as the ambitions of global 1.5°C targets, the reality of Nationally Determined Contributions (NDCs) and the operation of national judiciaries means that much climate change law is applied and arguably created at a national level. It is illustrative of the complexity of this area that defining a climate change case is difficult. For instance, although the case of Hueraz (Lluiya v RWE) would traditionally be compartmentalised as a civil suit and Plan B Earth v Secretary of State for Transport as a judicial review, what connects both cases is climate change. This cross-cutting dynamic causes judiciaries to rethink how law is labelled, siloed and considered in its entirety. However, courts across many legal disciplines have struggled to develop imaginative solutions to climate change and have favoured comfortable application of pre-existing legal formalism.
How the Judiciary Have Approached the Cancer of Climate Change
Justiciability
The widespread nature of the cancer of climate change not only challenges these frames placed around decisions, but its complexity also confronts conventional reasoning. The need for coherent and coordinated national responses to climate change is made more important considering the discretion the Paris Agreement gives to States. Decisions on whether a case is justiciable or within a court’s jurisdiction highlight the difficulties in applying legal formalism in the climate context.
Climate Page 28 the judiciary held that the Paris Agreement was not part of government policy at the time the decision was made, the commitments made under it were not relevant. Furthermore, in Friends of the Irish Environment v Ireland, the justiciability of the case turned on the fact that “policy became law” by enacting the Climate Act 2015 and thus the validity of the vague National Mitigation Plan could be subject to scrutiny. While formal thresholds are in place, particularly in the global north due to the cultural preoccupation with the separation of powers, the point to be made here is that the consistent spread of climate change cancer challenges these notions, and the pervasiveness of the problem calls for more innovative judicial reasoning to legally tackle the issue.
An example of the legal imagination required can be found in Preston J’s judgment in Gloucester Resources Limited v Minister for Planning, where he placed emphasis on the symbolism of what it means to be party to the Paris Agreement in deciding that planning refusal was correct. Preston J suggests that making climate change a relevant consideration in every administrative decision will provide an innovative avenue for courts in justiciability and judicial review proceedings. However, a balance in the judiciary addressing new issues always must be struck between adherence to legal formalism that legitimizes judicial decisions and addressing the overarching reality of the issue at hand.
Standing
It is also illustrative to assess how the rules of standing have been applied in climate change cases. As legal academic Elizabeth Fisher outlines, standing requirements generally require a party to display that their private interests have been directly affected. However, the scientific uncertainty of the future of climate change challenges these common formal standing requirements of “actual” and “immediate” threat as seen in Massachusetts v EPA and “imminent danger” in Friends of the Irish Environment v Ireland.
The different conclusions on standing between these cases is noteworthy in that the Irish Courts remained entrenched in legal formalism to deny standing on the rights claims. However, much like in Urgenda v Netherlands, the US court recognised the reality of climate change and developed a new form of “state standing” in recognition of the potential future environmental impacts. The reluctance of the Irish court to reimagine these strict tests even in the face of climate change also highlights the degree to which legal culture plays a role here when compared to Mohd Salim v State of Uttarakhand & others, which gave rivers “legal personality” to invoke rights like humans, when the Irish judiciary did not even let an NGO argue for human rights. Thus, some courts are willing to bend formalistic requirements to address the reality of climate change, whereas others are not. In an area that is so polycentric, these nation-specific formalistic barriers present a huge problem for a consistent global response and somewhat question the bottom-up approach of the Paris Agreement.
Causation
The polycentric nature of climate change frustrates the pre-existing doctrine of causation in that scientific uncertainties and future damages do not readily comply with well-established tests such as “but for”. This issue is well highlighted when comparing the different reasoning in Gloucester Resources Limited v Minister for Planning and in Greenpeace Nordic Ass’n v. Ministry of Petroleum and Energy.
In determining “relevant considerations” in Gloucester, Preston J held that “downstream burning” should be considered by the decision maker as “all greenhouse gases contribute to climate change”. Thus, Preston J took an expansive approach to climate change causation and included potential emissions as relevant considerations. It is notable that this language is similar to Massachusetts v EPA, where the US Supreme Court outlined that a causal link existed between vehicle emissions and climate change as “no matter what happens elsewhere” this “would slow the pace of global emissions”.
While one would be forgiven in concluding that legal imagination seems to be addressing causation rather well when looking at these two cases in a vacuum, if one considers the ruling in Greenpeace the difficulties of the relationship between the formalistic requirements of causation and climate change are apparent. In contrast to Preston J’s analysis the Court took a conservative view and held that there was too much scientific uncertainty regarding whether the granting of the licences would lead to increased emissions. This highlights once again how the pre-existing legal construct of causation impeded judges in addressing the spread of climate change cancer. If there is uncertainty that someone who has cancer will make it worse by acting a certain way, a doctor will advise them to stop. The earth has cancer and the judiciary in this case are facilitating it through unimaginative and somewhat indefensible adherence to strict legal formalism.
Conclusion
Climate change has spread like a cancer into almost every legal subject and challenges formalistic requirements such as jurisdiction, standing, and causation. This is particularly problematic as much discretion is given to States under the Paris Agreement, and like the spread of Covid-19, the polycentricity of climate change means that global cooperation is paramount. Thus, imagination in addressing climate change as a legal field is urgently required.
