A relational analysis of enterprise obligations and carbon majors for climate justice

Abstract

A coherent theory of climate justice must answer the question of “who owes what to whom, and why?” This paper considers the human rights responsibilities of business enterprises for climate injustice. I first introduce a relational approach to legal analysis, drawing upon the work of diverse theorists who confront the dominant yet unacknowledged prevalence of the bounded autonomous individual of liberal thought in diverse areas of law and policy, and offer a method for reinterpretation and transformation of law in the Anthropocene. I then examine the 2018 Principles on Climate Obligations of Enterprises, drafted by a sub-group of the legal experts responsible for the 2015 Oslo Principles. Ultimately, I argue that a coherent theory of justice in the Anthropocene is dependent upon relational insights which enable us to tell old stories in new ways, and so reveal the interconnectedness and interdependence of all beings, while accounting for power and difference.

Business accountability in the Anthropocene

“…While environmental litigation has historically focused on accidents and point‐source pollution for which culpability is easy to determine, it has since expanded to climate litigation in which major fossil fuel companies are held accountable for climate change‐related catastrophes (Abate, 2021; Ganguly et al, 2018; Seck, 2021). Though such attempts have faced similar challenges as other litigation‐based approaches, changes in case law on who has standing as a victim of harm might shift the equation.…”

“…The heightened chance of Anthropocene‐related litigation to succeed fundamentally changes the legal and financial risk landscape for companies. Climate (and more broadly, Anthropocene) liability generally requires defendant companies to pay for the damages and associated costs caused by their past actions, particularly if they acted in the knowledge that harms were likely to take place (Seck, 2021). Following the example of tobacco companies which had to contribute to the public health costs that governments carried due to smoking‐related diseases, carbon majors and major emitting companies may be asked to cover the public costs of governments rebuilding infrastructure after climate‐related disasters or adapting their infrastructure in preparation for likely climatic changes (Olszynski et al, 2017).…”

“…In response, there is a growing sense that business accountability should also extend to the ways in which companies influence the political process. This may include a range of activities, from “lobbying against climate action domestically or internationally to funding others to undermine climate action” (Doelle & Seck, 2020, p. 676; Seck, 2021), as well as other types of corporate political activity that fall into the three broad categories of spreading information (to policy makers, experts, and reporters); providing financial incentives (to incumbent and prospective politicians, e.g. through campaign finance); and building constituencies in favor of companies' preferred policies (both within the business world as well as among voters) (Hillman et al, 2004; Kolk & Pinkse, 2007).…”

“…Much of the human production and consumption behavior that affects planetary boundaries is driven by and through business activity (Sjåfjell & Taylor, 2019). International institutions such as the United Nations have recognized that “businesses are also duty‐bearers” and must “be accountable for their climate impacts and participate responsibly in climate change mitigation and adaptation efforts with full respect for human rights” (Seck, 2021; OHCHR, 2015, p. 4). The same is true for businesses' impacts on other planetary boundaries such as land use change, nitrogen and phosphorus pollution, and the introduction of plastics and other novel entities into the biosphere.…”