Climate law: what is it good for? (Absolutely nuthin’?)

While climate legislation can support a green and fair transition, it can’t replace efforts to build an active community of support for change.

Earlier this month, 2,000 Swiss women successfully challenged their government’s inaction on climate, arguing that the state’s inadequate efforts to combat climate change put them at disproportionate risk of dying during heat waves - thus violating their human rights. The European Court of Human Rights agreed, signalling a resounding victory for climate activism and its use of judicial pressure to force legislatures to safeguard our planet and its inhabitants.

Meanwhile, in August 2023 16 young people won a landmark lawsuit in Montana, US, when a judge ruled that the state was violating their constitutional right to “a clean and healthful environment,” as well as their rights to dignity, health and safety, and equal protection of the law.

I fought the law

Legal victories such as these are undoubtedly important, and by creating legal precedents they are creating a vital foothold for environmental preservation within the body of established case law. By keeping governments accountable to legal and political commitments, judicial review can force even recalcitrant administrations to protect the environment and enforce regulations for sustainability.

The symbolic narrative power of aligning, human, constitutional and the rights of nature should not be underestimated either. In a landmark decision, Ecudor’s government accorded legal rights to nature. The country’s constitution, recognizes the rights of “Pachamama” – or Mother Earth – to “maintain and generate its cycles, structure, functions, and evolutionary processes”.

At the heart of climate legislation lies the pursuit of equity and justice. It can offer a framework to address and build on climate and economic commitments. By enshrining principles of fairness and sustainability into law, we may lay the foundation for a future where prosperity is synonymous with environmental stewardship.

Moreover, climate legislation can empower vulnerable communities, ensuring that they are not left behind in the transition to a greener future. By prioritising equity and inclusion, we can address systemic inequalities and mitigate the disproportionate impacts of climate change on marginalized groups. Bolivia adopted the Mother Earth Law, which, embracing the indigenous people's spiritual world view, defines Pachamama as a source of life, a fertile and sacred being, with legitimate rights. These latter two examples illustrate the importance of law in reflecting a narrative shift, in this case from anthropocentric to eco-centric paradigms and creating a vision of justice with nature at its heart.

…and the law won

However, as we celebrate victories on the climate front, it’s important not to forget that, arguably, they are a manifest symptom of the fundamental failure of our legislative institutions and processes to adequately deal with climate threats. After all, the courts are not supposed be arbiters of policy; that is the role of elected governments and our political leaders.

The mere fact that individuals and groups are resorting to litigation is proof that their parliaments, senates, and governments are failing to address climate change. But even beyond this, the legal approach on its own can never deliver truly robust and ambitious climate policies.

This is because the process of litigation is fundamentally ill-suited to establishing strong and enduring policies. It is a time-consuming and extortionately expensive process, with large power asymmetries baked into the system which favour governments and large corporations, especially when the plaintiffs are not extremely well-funded themselves.

It is complex and extremely technical, full of hurdles that can easily derail legal challenges – for example, the need to establish a legally-compelling causal link between local government action and global climate impacts, or even whether courts have a mandate to hear cases or plaintiffs legal standing to file them. And its verdicts are almost always issued in extremely narrow and technical terms, which eek out narrow and technical precedents rather than establishing expansive principles. Such circumscribed and procedural grounds are an extremely shaky foundation to build a whole edifice of policies upon.

The classic example is abortion access in the United States, which was entirely built around an implied right to privacy contained in a subordinate clause in a constitutional amendment primarily concerned with judicial due process. Roe vs Wade (1973) never established a legal right to an abortion – it just held that restricting abortions was an unconstitutional violation of a citizen’s right to privacy. Such narrow rulings are easily overturned, as we have seen.

Here come the men in black (robes)

Indeed, the law can just as easily be used by the opponents of climate action. In the United States, environmental justice advocates are concerned that a ruling from Judge Cain, a Trump appointee, will make its way to the Supreme Court and permanently imperil federal environmental civil rights cases. Fossil fuel giant Shell is deploying lawyers to sue Greenpeace for peacefully protesting at oil rigs. And governments around the world have pursued climate activists and environmental defenders through the courts, threatening the right to protest and strangling civil society space. These tactics threaten climate justice.

In the face of mounting climate challenges, we must recognise that litigation alone can never be the bedrock upon which we build green and fair economies. Instead, ambitious action must be grounded in significant constituencies for change, across all communities and with a popular base of support. Without mass support, legislation cannot endure, and legal victories can be appealed and overturned. As we are reminded by Katie Redford and Mark Gevisser, the revolution will not be litigated.

Whether through lobbying efforts, grassroots activism, or legal challenges, it is imperative that we defend and strengthen existing climate legislation while advocating for more ambitious targets and robust enforcement mechanisms in all spaces of governance. We need to win in the court of public opinion not just in the courts of the land. Individual laws need to be supported by committed politicians, robust policy and broad mandates for action from communities.

Litigation is but one tool in our arsenal. Let us also create narratives for change, mobilise and unite communities, re-negotiate eco-social contracts, platform the most marginal voices, develop economic policies, find technical solutions and shape the ecosystem to create fair and green societies. As Audre Lourde warned us, "the master's tools will not dismantle the master's house."

- Jean McLean, Green Economy Coalition