The Legally Disruptive Nature of Climate Change

Abstract

Climate change gives rise to disputes and problems that are not easily addressed by existing legal doctrines and frameworks. This is because: it is a polycentric problem; the assessment of future climate impacts must deal with uncertainty; climate change is sociopolitically controversial; and addressing climate change requires recognising a dynamic physical environment. As such, climate change can be thought of as legally disruptive in that it requires lawyers and legal scholars to reconcile the legal issues raised by climate change with existing legal orders. The legal disruption catalysed by climate change has not only led to the creation of new legal regimes but also given rise to a multitude of legal disputes that require adjudication. A study of some of these cases highlights the need for active and deliberate reflection about the nature of adjudication and the legal reasoning embedded in it when confronted by a disruptive phenomenon like climate change.Climate change now figures frequently in adjudication. Between 2013 and early 2015, there were over 394 cases in the UK, US, Australia and Canada in which a legal dispute related in some way to climate change. Third, we are not either for or against climate change adjudication. We take it as a given -394 cases in 4 jurisdictions in less than 2 years says it all. What we are arguing for is the need for reflective, rigorous and creative discussion about the relationship between climate change and legal reasoning. A study of the types of legal issues that climate change is generating in adjudicative contexts is an important starting point for that discussion.

Climate change litigation: A review of research on courts and litigants in climate governance

“…This trend was supported by Richard Heede's () work, which was the first to map and quantify the cumulative emissions of the 90 largest carbon producers (the “Carbon Majors”) from 1854 to 2010 (see also Frumhoff, Heede, & Oreskes, ). Surprisingly absent from courts in climate‐related cases and from the scholarship is the transport sector (e.g., aviation), international shipping, car manufacturers) and the meat industry (but see Hilson, ; Fisher, Scotford, & Barrit, ). The special report by the UN's Intergovernmental Panel on Climate Change stresses the urgency of strong action across all transport modes (IPCC, ).…”

In the Air of the Natural History Museum: On Corporate Entanglement and Responsibility in Uncontained Times

“…Such engagement is evident, for instance, in the recent increases in climate litigation, which seeks to hold governments and private organisations responsible for climate change-related damage and/or threats of damage. 22 Legal scholars and practitioners, discussing the cases, highlight the prospects for large-scale harm objects and social-natural entanglements to be ‘legally disruptive’ (Fisher et al 2017 ). This disruption occurs where certain diffuse, uncertain, polycentric, spatially and temporally overflowing matters, which enter experience, ‘promote reflection’ about the nature of legal adjudication and legal reasoning embedded in the law (ibid.…”

The UK Climate Change Act

“…Questions to be considered include whether there should be express provision for matters such as statutory duties versus discretions; what elements can be reviewed; grounds for review; legal standing; and remedies (Fankhauser, Averchenkova and Finnegan, 2018). Given the burdens (and potential benefits) of legal action on climate change for citizens and public interest groups, additional elements to support legal action, such as legal aid, merit consideration ( (Fisher, Scotford and Barritt, 2017). 7 Decisions on these matters will be particularly important if the New Zealand commission (or other body) does not have legal enforcement powers.…”