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Climate Change and the Law

Do human beings enjoy a right to a healthy environment? That is, one that is not severely degraded by catastrophic climate change. In theory, yes. In practice, almost never. In this short, but brilliantly clear article, the UN’s special rapporteur on the subject sets out a compelling argument for why the human right to a healthy environment must now become law:

Legal responses to climate change are determined by the gravity of the harms it is projected to cause to human beings, their property, and their investments. There is no clearer statement of the vast extent of those harms than David Wallace-Wells’ ‘The Uninhabitable Earth’. The research and referencing is meticulous, the writing lucid, and the message very, very serious:

Why doesn’t International Environmental Law seem to work? We all know there are treaties between States governing everything from freedom of the seas to labelling tomato exports. The globalisation of trade since the 1990s has been swift and efficient. Why not the globalisation of environmental protection? One major reason was set out by a biology professor in 1968: The Tragedy of the Commons. Contract law governs trade. Each party knows who owns what. But who owns the air, the seas, and the soil?

Is failing to act to combat climate change, or ignoring one’s own international pledges to do so, an unlawful use of public power? The process of judicially reviewing the legality of government decision making, as it has evolved through the English common law, has consistently allowed ministers to largely ignore climate change. To understand why this is, read this superb blog by a leading barrister on the UK Supreme Court’s ruling that ignoring the Paris Agreement while licensing the hugely polluting third runway at Heathrow was entirely reasonable:

The film that shook the world awake to the reality of climate change, inspiring countless anxious conversations and many determined career changes, Al Gore’s 2007 educational documentary, making dramatic use of a slideshow and the former VP’s southern charm, won two Oscars. Watched in conjunction with its sequel, released a decade later, the films are about as compelling an argument that climate change is the greatest threat to the first duty of government, which, as the House of Lords has held, is to protect and safeguard the lives of its citizens:


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