The right to climate
It’s time to harness the power of millions of lawsuits to stop the boiling of the planet
It seems that the more things change, the more they stay the same.
More than the saying of a French philosopher or the lyrics of a song from a soft-rocker in 2006, the adage could be applied to the glacial pace at which the international community is moving to address climate change.
Recently, at the climate conference known as COP26 in Glasgow, Scotland, the president of the small island nation of Palau, Surangel Whipps, Jr., castigated the world’s economic powerhouses for watching as Palau slowly disappears beneath the waves.
In his speech to the conference, President Whipps declared that “there is no dignity to a slow and painful death – you might as well bomb our islands instead of making us suffer only to witness our slow and fateful demise.”
With similar stories emerging from Fiji, Kiribati, the Barbadoes, the Marshalls, and other small Pacific Island nations, we must finally come to grips with one glaringly apparent fact – that the international climate change negotiations are not going to get us to where we need to go in the time that we have to get there.
It’s an admission that now demands a different approach – one in which climate change is seen as a human rights violation, rather than just a negotiation between the “haves” and the “have-nots.”
Less in terms of a global planning problem, and more in terms of an assault and battery on those who have caused little, or nothing, of the climate impacts that they are now being forced to endure.
The Constitution of Fiji recognizes rights to life and personal liberty, in addition to establishing a right “every person to health,” a right to a “clean and healthy environment,” and the right to “have the natural world protected for the benefit of present and future generations.”
The Constitution of the Marshall Islands includes similar guarantees - the right to “life, liberty, or property;” the Bolivian Constitution guarantees a “right to life,” and the “right to health;” Kiribati’s Constitution declares a right to “life, liberty, and security.
Wedging climate change into being a legal cause of action under these constitutional guarantees may sound far-fetched, but it’s not as off-the-beaten-path as it may sound. Even the U.S. federal courts have grudgingly supported the approach – five years ago, a court in Oregon established that “the right to a climate system capable of sustaining human life is fundamental to a free and ordered society. . . [and that] a stable climate system is a necessary condition to exercising other rights to life, liberty, and property.”
It’s not like we can’t readily identify the countries or industries which are violating the rights of the people of Fiji, Palau, the Marshall Islands or Kiribati.
As a result of climate change research, we can now even identify the percentage of total emissions contributed by each utility corporation to the atmosphere. Courts could easily assess the individual responsibility of those entities to the people of these nations.
If the provisions of existing constitutions can’t be wrangled to support a human rights claim based on climate change, then national legislatures need to adopt new laws that do. The legislatures of small island nations could recognize a “new” legally enforceable human right to a healthy, liveable climate, and provide jurisdiction to their own courts to hear claims brought to protect that right.
National legislatures could supercharge those laws by recognizing that the climate, or atmosphere, has rights of its own to be healthy. Such laws could rapidly expand the “rights of nature” movement which is accelerating around the globe.
Given the deep pockets of energy corporations and the national governments shrugging off their responsibilities, a phalanx of the world’s largest personal injury and civil rights law firms would stampede to represent claimants. Data would be amassed, emissions tracked, percentage of liability charted, settlements made, and decisions rendered.
It’s time to harness the power of millions of lawsuits to stop the boiling of the planet.
It’s time to release the hounds.
Thomas Alan Linzey serves as senior legal counsel for the Center for Democratic and Environmental Rights, a Washington nonprofit organization.