Can we conceive of the right to a safe environment in the face of climate catastrophe?

BRUCE LINDSAY

Bruce Lindsay is a Senior Lawyer and Acting Director Advocacy and Research at Environmental Justice Australia.

We are in a time of hard truths. The biggest of these is climate change, or rather ‘dangerous anthropogenic interference with the climate system’ (1) so profound it is not merely on the verge of dangerous but catastrophic. This truth is supported by scientific consensus and increasingly by direct experience.

In what ways should we have a right to feel safe from such a crisis? Moreover, do we have a right to objective conditions of safety and health, and can we call on the state to strive for those conditions? In Australia we confront a further hard truth, namely that government and society are notoriously averse to norms of rights, and certainly human rights, as a form of claim on the state. The tacit bargain of Australian government and ‘people’ is a democratic one, with a certain protective function, but without lofty ambitions.

Climate change leaves us on a precipice beyond which objective or material conditions are not safe, nor stable, nor reversible. We know now that environmental conditions, on the global scale, can be conceived as comprising a ‘safe operating space for humanity’ (2). Humanity is on the verge of passing thresholds, or ‘tipping points’, of climate safety.

The spectacular failure of Australian domestic law and policy to respond meaningfully, if at all, to the climate crisis should not in my view deter us from agitating for change. Governments must direct national effort fully towards conditions of ecological safety, in order to walk back from the precipice to the extent that we still can.

Innovations in law can contribute to this national effort. I will mention two key areas.

THE INTERNATIONAL HUMAN RIGHTS FRAMEWORK

Human rights considerations should be integral to obligations to tackle climate change. For entire societies, climate change is an ‘existential’ crisis. For example, some states are likely to disappear entirely, millions displaced, lives already shortened. The Paris Agreement acknowledges the human rights context (3); Australia has signed on to that Agreement (4).

The UN Human Rights Council, through the work of a Special Rapporteur, sets out the nexus between climate change and human rights. UN Member States have obligations to protect the enjoyment of human rights from environmental injury (5). These obligations extend to climate change (6). Australia is required to observe these obligations (7). Obligations comprising rights to a safe and healthy environment are connected to fundamental rights, such as rights to life, health, and culture. There are enhanced duties owed to vulnerable populations, such as women, children and indigenous peoples (8). Framework principles (9) on human rights and the environment establish three forms of rights: procedural rights such as access to information and to justice, substantive rights include protections from State actions that jeopardise the right to a safe climate, and special rights attaching to proactive actions in favour of vulnerable populations. Private actors as well as States have obligations in respect of human rights to a safe and healthy environment. Environmental rights are recognised by over 150 countries and more than 100 include these rights in their Constitutions. Australia does not.

In the international sphere, a right to a safe climate has been articulated, based on State and private obligations to address dangerous climate change: ‘A safe climate is a vital element of the right to a healthy environment and is absolutely essential to human life and well-being’ (10). A safe climate has the status of specific, if urgent and compelling, application of established human rights norms and human rights law. This expression of human rights law as encompassing the right to a safe climate enables climate advocacy, clarifies imperatives for State response to the crisis, and focuses human rights institutions on improving climate policy (11). It can be delivered through execution of accepted climate programs (12).

We can say there is a right to a safe climate at the global level. The science indicates it must be linked to the ‘safe operating space for humanity’ (13) – that is, planetary limits and boundaries. We can thank the UN for expressing clearly, forcefully and succinctly that the basic democratic premises on which our society purports to function extend to urgent and rapid action on climate change.

A CONSTITUTIONAL FRAMEWORK

The second nascent source of law tying the outcome of a ‘safe’ climate to legal conditions may be constitutional. What has opened up this question is litigation in the USA.

In January 2020, 19 young US citizens and NGOs supporting them received judgement on whether they could put that Government on trial for failing to act on climate change. The plaintiffs in the Juliana litigation (14) argue that Federal laws and policies supporting fossil fuel industries and failure to act on climate change imperil basic constitutional protection of their rights and freedoms. As their complaint set out: ‘Fundamental to our scheme of ordered liberty… is the implied right to a stable climate system and an atmosphere and oceans that are free from dangerous levels of anthropogenic CO2’ (15) By January this year the litigation proceeded to the point of judgment on whether the case met the constitutional criteria for it to be heard in the courts. It was not successful. By a 2-1 majority, it failed. Climate action, the majority held, was a matter for executive and legislative government – precisely those domains in which action had previously failed and continues to fail. The majority ‘reluctantly’ (16) held the matter was beyond the competence of the courts to decide.

However, what is extraordinary about this litigation is, firstly, the Court of Appeal found entirely for the plaintiffs on the facts, i.e. that climate change is real, dangerous and imperils the present and future of those bringing the action. Secondly, the majority was patently sympathetic to the legal claims even if they found the complaint stretched the functions of the judiciary too far. Thirdly, the dissenting judge set out one of those judgments that may well ring in the ears of lawyers and policymakers for years to come. Opening her dissent, Judge Josephine Staton, resounds:

… the [Federal] government accepts as fact that the United States has reached a tipping point calling out for concerted response – yet presses ahead toward calamity… Seeking to quash this suit, the government bluntly insists it has the absolute and unreviewable power to destroy the Nation… Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s wilful destruction (17).

The extraordinary moment of Judge Staton’s opinion is that a superior US Federal Court accepts the scientific evidence put before it that climate change poses an existential threat to the Nation itself. She puts this on the footing that the US polity cannot countenance its own demise or destruction, a principle that goes back at least to the Civil War and which Lincoln used to wage war on the Confederacy. Where she departs from her colleagues is in this problem of accepted physical threat being susceptible of judicial solution. She accepts that it is. They do not.

The procedural fight of the Juliana litigation is not quite over yet. Regardless of its fate, what this opinion does is set out a foundational question which even resonates in Australia: if the biophysical crises posed by climate change are so acute as to challenge functioning constitutional government, how can it be that government, through its judicial arm, cannot compel a course of action directed toward ‘safety’ as a matter of law? The relief sought by the Juliana plaintiffs is merely a ‘plan’ charting that course, not the guarantee of climate safety.

RESONANCE IN THE AUSTRALIAN CONSTITUTIONAL FRAMEWORK?

The Australian constitutional context is, plainly, quite different. No such question has been agitated here. We do not have the same rights protections. The notion of a basic constitutional protection of national institutions and national government is given expression in the so-called ‘nationhood power’ implied by the intersection of executive and legislative powers of the Commonwealth (18). This is framed as a power, not an obligation. The question seems logically to arise, however, in Australia, as in the US: if the climate crisis is, on the scientific evidence, existential in nature (or even likely to seriously imperil the functioning of national government), at what point can we insist, as a matter of law, that government exercise powers in order to physically safeguard the nation? In the Juliana case the plaintiffs seek only, by way of legal remedies, that national government does something in an organised way, not finally resolve the climate crisis. It is a suit for climate action, not resolution. It might be said to be an action setting out the right to hope for a safe climate. Perhaps this is an ambition Australians should be looking to also.

1. UN Framework Convention on Climate Change, Art 2.

2. Rockstrom et al ‘A safe operating space for humanity’ (2009) 461 Nature 472; see also Stockholm Resilience Centre ‘It’s all about the safe operating space’, https://www. stockholmresilience.org/research/research-news/2019-0725-its-all-about-the-safe-operating-space.html for a comprehensive overview of the concept and its use.

3. Paris Agreement to the UN Framework Convention on Climate Change, Dec 12 2015, TIAS No. 16-1104.

4. Paris Agreement [2016] ATS 24.

5. In respect of application to Australia, see Environment Defenders Office Legal Analysis: The Right to a Healthy Environment in Australia (2020), https://www.edo.org. au/2020/01/09/right-to-healthy-environment-in-australia/

6. Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN General Assembly, A/HRC/31/52, 1 February 2016 (‘Special Rapporteur Report 2016’), [33]; Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, submitted in accordance with Human Rights Council Resolution 37/8, UN General Assembly, A/74/161, 15 July 2019 (‘Special Rapporteur Report 2019)’), [62].

7. See Environment Defenders Office, Environmental Justice Australia and EarthJustice Joint Stakeholder Submissions on the UN Periodic Review of Australia (Submission to the Human Rights Council, 2020), https://www.edo.org.au/ publication/jointsubmission-un-periodic-review-of-australia/

8. Special Rapporteur Report 2016, [50]-[84].

9. UN Special Rapporteur on Human Rights and Environment Framework Principles on Human Rights and the Environment (2018), https://www.ohchr.org/Documents/Issues/ Environment/SREnvironment/ FrameworkPrinciplesUserFriendlyVersion.pdf

10. Special Rapporteur Report 2019, [96].

11. Special Rapporteur Report 2016, [85]-[89].

12. Special Rapporteur Report 2019, [76]-[94].

13. See note 2 above.

14. See generally ‘Juliana v US: Youth Climate Lawsuit’, https:// www.ourchildrenstrust.org/juliana-v-us

15. First Amended Complaint for Declarative and Injunctive Relief; Case Number: 6:15-cv-0517-TC: https://static1. squarespace.com/ static/571d109b04426270152febe0/t/57a35ac5ebbd1ac038 47eece/1470323398409/ YouthAmendedComplaintAgainstUS.pdf, [304].

16. Juliana v United States, No. 18-3602, United States Court of Appeal for the Ninth District, 17 January 2020, 32.

17. Juliana v United States, No. 18-3602, United States Court of Appeal for the Ninth District, 17 January 2020.

18. See generally Anne Twomey ‘Pushing the boundaries of executive power – Pape, the prerogative and nationhood powers’ [2010] 34 Monash University Law Review 313.