Climate consciousness in daily legal practice

Thinking about climate change generates helplessness in us. Our persistent role creating this global catastrophe seems so inevitable as to be predetermined; our will to contain it, or even reach agreement to contain it, feeble. Global negotiations seem far removed from our everyday lives and, as lawyers and scholars, remote from the daily practice of our discipline. But understanding climate change as a multiscalar problem requiring a response on all levels reminds us that climate change is as much a small-scale, local, and immediate issue, as it is a global problem of the past and future. This encourages a ‘climate conscious’ approach, which accentuates the importance that our conduct, decisions, and practice have in relation to the demands of climate change.

Legal thinking and action(s) in response to climate change have generated both a wealth of scholarship and a varied body of climate change jurisprudence. In most legal climate change actions the fact of climate change is not disputed; rather, the nature of an appropriate response, is. Studies of the scope and content of climate change case law have identified a heterogenous body driven by varied objectives. Yet any litigation about climate change will have broader impact, by implicitly or explicitly condoning or condemning defendant behaviour, and by determining where the costs of tackling climate change fall. This accentuates the value of focusing on the instrumental when organising climate cases. In doing so, a number of criteria help us navigate the expanse of potential climate change litigation.

Primarily, it is unhelpful to continue to conceptualise climate change as a global problem that is removed from us; climate change is multiscalar. While this notion is complex and contested, in essence it describes a fluid and dynamic phenomenon, requiring a concerted and consistent response across our static levels of governance. The potential for interaction between scales helps us to understand that, for instance, local conduct (and litigation) has potential to impact on national, regional, or global climate policy. In practical terms, it helps us to understand that the climate context has as much relevance in small or mundane disputes, as in mass liability claims.

We must also rethink our conception of climate change litigation. At this stage we should move beyond the idea of climate change liability as liability for climate change, and start thinking about litigation in the context of climate change. This means paying attention to the multiple ways in which climate change issues are present but invisible in, particularly private, litigation. For myriad reasons it might not serve either party to introduce climate change as an issue, when this interfaces with smaller, more mundane disputes, so the broader context would remain unacknowledged. I characterise this as ‘climate blind’ litigation – the outcome will have some impact on climate change policy, but the action will be litigated without any attention on these impacts. In contrast, a ‘climate conscious’ approach demands awareness of the interfaces between the subject matter of the litigation and climate change issues. For example, it could acknowledge where climate damage is invisible to self-interested parties, and where liability outcomes have potential to determine climate change policy.

We should examine the purpose and impact (both intended and unintended) of prospective and concluded litigation. In doing so, clear distinctions must be drawn between litigation about mitigation or adaptation strategies. Of course, climate mitigation and adaptation strategies could overlap or interact in dispute areas; for example, climate blind litigators would accept carbon intensive mechanical cooling as a solution to poorly adapted, overheating buildings.

The best-known decisions concerning climate mitigation are large and unsuccessful actions seeking compensation for climate change loss and damage. The refusal to adjudicate these matters raises questions about the instrumental effect of an adverse (or no substantive) decision in climate cases. Arguably, this constitutes an implicit refusal to deter high-emitting defendants, and determines that the most impecunious claimants should bear the harms of climate change without recompense.

Turning to adaptation: floods, rising sea levels, and unmanaged coastal erosion are all areas where climate risks are predicted and emerging, yet surprisingly the literature reflects little legal action. There are a host of reasons why (particularly small-scale, private) litigation in relation to climate change adaptation would be ‘climate blind’, not overtly engaging with climate change issues. For example, parties to private litigation about flood damage would avoid introducing climate change into determinations of foreseeability and causation. Nevertheless, the instrumental impacts of any finding would persist; decisions on liability for flood damage implicitly encourage attention (or otherwise) of government agencies to the increasing risks of flooding. As before, any outcome has potential to support or undermine national climate adaptation policy, and define where the risks of, and responsibility for, changing climate conditions lie. If this is to be done, it is better to do it explicitly.

Of course, many private disputes engage with areas of social or environmental importance, which often are taken into account in determining disputes. However, its particular characteristics – the combination of immediate invisibility, potentially disastrous consequences, and significant policy challenges – call for particular awareness about climate change. It might also be said, for instance, that in smaller disputes the volume of emissions in issue is so negligible compared to the overall scale of the problem that it might be disregarded. This approach ignores the reality that climate change is a cumulative problem, and that the combined effect of many ‘insignificant’ pockets of excessive emissions is significant.

In summary, recognising that climate change demands a response on a small scale, can relieve us of our sense of helplessness. This, and a reminder that any legal action which interfaces with climate issues, will impact on climate policy, imposes a responsibility on us: to maintain an awareness of climate issues in our daily lives and practice. As lawyers and scholars, it is precisely in relation to the smaller or more mundane areas of practice, where we remain preoccupied with our basic interests, that carefully ‘climate conscious’ approaches are required.

Headline image credit: Trees in haze By Sebastian Kostrubala. CC0 via Unsplash.