Abstract

Excerpted From: Lisa Benjamin, Racial Capitalism and Climate Change: Colonialism and Climate Law and Policy in the Commonwealth, 41 Wisconsin International Law Journal 577 (Summer, 2024) (229 Footnotes) (Full Document)

This Article provides a brief overview of existing climate policy and litigation efforts in a select group of Commonwealth countries: the United Kingdom, Canada, India, Pakistan, Kiribati, and The Bahamas. The climate policymaking and litigation landscape has changed dramatically since the Paris Agreement came into force in 2016. This overview captures very recent developments in climate law and policy in a select group of Global North and Global South Commonwealth countries, and it provides a timely reminder that efforts at climate policymaking vary significantly in different national jurisdictions across the Global North and Global South.

Levels of climate vulnerability, and climate responsibility, often reflect the colonial histories of these countries. These colonial histories are reflective of racial capitalist trajectories, which impact current day emissions, consumption habits, and climate vulnerabilities. While history can be determinative, this Article also illustrates that the climate policy landscape can shift quickly and dramatically. Within this group of countries, the past few years have seen innovative legislation and litigation efforts, although the outcomes of these efforts have been uneven. Climate extremes have also pushed countries towards maladaptation and even discriminatory housing and immigration policies, illustrating that exclusionary policies and circumstances can compound existing climate vulnerabilities. Significant variations exist even between countries in the Global North and Global South. Commonwealth countries share histories and common law traditions, but the Commonwealth itself has been slow to respond to the needs of vulnerable countries, as the institution itself contains and replicates racially divisive policies and economies.

While Global North countries have seen the bulk of climate litigation to date, their climate policy approaches differ dramatically. In the United Kingdom, the 2008 Climate Change Act ushered institutional structures such as the Climate Change Committee, which paved the way for a national target of achieving net-zero emissions by 2050 enshrined in legislation. Recent political changes threaten to derail legislative progress in the United Kingdom, and economic and political blockages persist despite legislative advances. Canada has also taken progressive climate policy approaches, with mixed levels of climate litigation. Both the United Kingdom and Canada are home to some of the largest carbon major companies in the world, which themselves have colonial roots and legacies.

In contrast, several countries in the Global South, which are and will continue to experience the worst impacts of climate change, have been uniformly innovative and ambitious given existing capacity constraints. India and Pakistan's progressive judiciary provide a picture of legal innovation that could disseminate throughout the Global South, particularly in the context of climate adaptation and human rights. Extreme events, such as Hurricanes Irma and Dorian in The Bahamas, illustrate the perils of the absence of robust climate policy and how climate-exposed subpopulations within a vulnerable country can be targeted. Kiribati has been innovative in its climate policymaking, establishing the Migration with Dignity policy. This policy resists the narrative of the I-Kiribati as victims of climate change and provides a reconceptualization of migration as a tool to sustain livelihoods. This Article argues that as the impacts of climate change escalate, more climate policymaking and litigation will occur within and throughout the Commonwealth, and the sharing of best practices (by legislatures, litigants, and the courts) is both useful and necessary.

[. . .]

Despite escalating climate impacts, the policy landscape--even among a small selection of countries in the Commonwealth--remains mixed. Legal interventions through legislatures and the courts have escalated significantly in the past few years. Most policy progress appears to be made under direct climate change legislation, linked to independent and expert-based government advisory committees, particularly in the Global North. But climate change policymaking is complicated, and the results can be uneven. National industrial priorities, the influence of domestic oil and gas interests, as well as climate vulnerabilities, combined with political blockages, strongly influence both climate policymaking and climate litigation efforts. These conflicting interests can have a push-and-pull influence on climate policymaking and implementation. Governments must bring both the public and industry along with them in climate policymaking efforts or resist industrial pressure in order to implement strong climate action domestically, and many governments are unwilling, or unable, to do this. This policy backtracking is directly linked to the strong influence of domestic oil and gas industries, particularly in the United Kingdom, Canada, and India. Some of these companies have long and direct links to colonial-era oil and gas companies, such as Standard Oil. Consequently, they have directly benefited from racial capitalism and in many cases continue to perpetuate the extraction and exploitation of the Global South. Despite, or perhaps because of, these policy blockages, progressive judicial action has been undertaken by both courts and litigants, even in the absence of specific climate legislation, particularly in the Global South. In the Global North, courts have been reluctant to impose liability for climate harms on these corporations. Jurisdictional wrangling, as well as a lack of uniform political and social consensus on climate change, has hampered litigation efforts in Canada and the United Kingdom.

The picture in the Global South is more diverse, although policy circumstances still cater to national circumstances and imperatives. Litigation is still directed at the major climate vulnerabilities experienced in those countries, from deforestation in Pakistan, air pollution in India, and climate-induced migration in Kiribati. Geographic patterns of climate litigation can also be identified here; countries with significant emissions in the Global South, such as India and Pakistan, are experiencing some of the highest levels of climate litigation. Active judicial responses in these jurisdictions are justified given the dire circumstances facing citizens in the Global South. Courts in these countries are used to acting in conditions of entrenched poverty, government inactivity, and the long shadow of colonialist infrastructure--the circumstances in these countries are arguably more desperate and climate responses more urgent.

While the sampling of countries assessed here have varying levels and types of governance arrangements, administrative capacities, economic development, societal cohesion, inequality, and climate vulnerabilities, they share a common law tradition. While most common law rules are settled, they may have “untidy” overlaps and often have moral underpinnings. Judicial understandings of these moral dimensions change over time. Climate litigation is likely to continue and even increase, and judicial interpretations of common law rules are likely to expand and progress as the impacts of climate change become more dire. Cases and litigants are relying on provisions of the Paris Agreement but also judicial outcomes from other Commonwealth countries. While this reliance tends to be Global North-North or South-South in alignment, learning networks that share best practices across the Global North and South have already formed, particularly amongst NGOs bringing climate litigation. South-South financing relationships are also emerging, with India dedicating a Commonwealth window in the India-UN development partnership fund. The characteristics of the climate legislation-litigation nexus are underresearched. For example, it is unclear whether and to what extent climate litigation may inspire climate legislation in countries, and while there is still little evidence on the impact of litigation on policymaking, there is clearly a connection, as illustrated in some of these countries. Litigation can, at times, spur legislative action, even in Global South countries where significant capacity constraints persist. Innovative judicial action is also implementing existing environmental legislation with beneficial climate outcomes.

Legal relationships and jurisdictional overlaps across the Global North and South are also emerging, illustrated by the New Zealand/Kiribati migration case, and these are also likely to increase in the future. Common law climate networks, such as the Commonwealth Climate and Law Initiatives (which focus on directors' duties), that are both South-South and North-South are important networks. But given the Commonwealth's historic legacy of slavery, colonialism, and racial capitalism, the Commonwealth Secretariat should do much more than it previously has done in the context of climate justice. In the absence of such activities, it will be up to climate litigants, legislatures, and policymakers to share best practices in climate policymaking, as well as climate adjudication, to ensure the Commonwealth continues to foster and build upon positive change.

Associate Professor, Lewis & Clark Law School, Portland, Oregon