Make a healthy climate a legal right that extends to future generations
This is the winning essay of The Economists Open Future Essay Competition 2019 on the question What fundamental economic and political change, if any, is needed for an effective response to climate change? The winner is Larissa Parker, a law student at McGill University in Montreal. The jury selected the essay from 2,400 entries by people aged 16-25. More information about the competition and finalists is here. Excerpts from other essays are here. * * * IN MARCH 2019 I joined over 100,000 young people to strike in the streets of Montreal. We claimed the downtown area for hours, demanding increased climate action from our decision-makers. Children of all ages attended, marching for their right to grow up in a healthy world. In the last decade the not-in-my-backyard phenomenon has turned into a not-in-my-lifetime one. After attending the United Nations climate conferences as a youth delegate for years, I have watched governments around the world put short-term economic gain before the long-term well-being of the planet and my generation. Although 195 nations committed to rapidly reduce greenhouse-gas emissions to keep the global average temperature well below 2C relative to pre-industrial levels, many countries are nowhere near achieving their targets. In Canada, for example, current policy decisions have resulted not only in no reductions, but an increase in greenhouse-gas emissions. The latest national inventory report indicated that emissions rose by 8m tonnes from 2016 to 2017, an increase of about 1%. This accountability problem is rampant across the world, yet few legal systems are equipped to address it. Although climate litigation is becoming a new front for climate action, with hundreds of cases arising around the world, they are limited in scope. Today, for the most part, only current generations have legal standing to sue; and to do so, they have to prove the impacts that they have experienced or are experiencing. This is problematic in the context of climate change because the effects of greenhouse-gas emissions take decades to manifest themselves. This renders it incredibly difficult to contest todays polluting activities as their impacts have not been felt yet. It is also why governments feel little pressure to meet their commitments or take strong action. I came to law school with high hopes of changing this. One solution is to recognise the rights of future generations to a healthy environment, which would open the door for lawsuits on climate inaction and keep governments accountable to their commitments under international law. If a government does not take sufficient action on climate change now, then it is not doing enough to prevent harm to future generations, thus violating their rights to a healthy environment. The problem arises from the legal standing of future generationsor lack thereof, for they are generally not currently considered identifiable individuals under the law. Although it is easy to grasp their fundamental interest in a healthy environment, the law is reluctant to grant them recognition. This is because most of those individuals have not been born yet. How or when they will experience the impacts of climate change remains undetermined. Nevertheless, they represent our children, grandchildren and great-grandchildren. It is conceivable that, at the very least, we have a duty to ensure they inherit the planet in a condition that is comparable to ours. This type of thinking has already led a handful of legal systems to begin recognising such rights, at least in limited form. Most famously, in Oposa v Factoran, the Supreme Court of the Philippines accepted that a class action could be filed on behalf of future generations to denounce logging licences. Notably, the court also affirmed that natural resources are held in trust for the benefit of present and future generations, and that the government was consequently required to protect them. A similar case was introduced in Pakistan in 2015, where a seven-year-old girl, represented by her father, filed a petition against the state for violating the constitutional rights of todays youth and future generations because of its failure to combat climate change. In 2016 Pakistans Supreme Court allowed the case to proceed. It is still pending. Several cases against governments in the United States, Canada and Britain are also in progress. Although it has limitations and is often slow, the ability of the law to modify and enforce norms, values and behaviour is significant. Through legislative and administrative developments, as well as through judicial reinterpretations of constitutions, statutes or precedents, law has the power to articulate the course for social transformation. Take Edwards v Canada (AG)a famous Canadian case which ruled in 1928 that women were eligible to sit in Canadas Senate. At the time, women were not yet considered persons as far as the constitution was concerned. The decision redrew the boundary around who could be considered a person under the law and ensured that women would no longer be denied rights based on its narrow interpretation. There are advantages that come from granting rights and legal standing. For all their shortcomings, legal rulings are often seen as legitimate, authoritative and enforceable because of the independence of the judiciary. And legal decisions tend to set precedent for years to come. Of course, the law does not do this on its own. It usually occurs in response to a shift in a societys values. To me, this shift is increasingly evident in the climate movement. A rising number of youth around the world are coming together to urge their governments to take stronger action to combat climate change and avoid its catastrophic effects. They are engaging in civil disobedience, such as school strikes, and have initiated lawsuits to stop various polluting activities or to demand stronger policy responses. I hope that before long judges and decision-makers heed these voices; they are only getting louder. The slow-onset nature of climate change, and the difficulties of establishing accountability from one generation to the next, make it necessary to develop and adopt new legal principles that articulate the rights and obligations underpinning intergenerational equity. Formal recognition of the rights of future generations would expand the scope of climate litigation and allow present-day litigants to sue on their behalf. Although it is simply one path of many that will be required to achieve climate justice, enshrining the rights of future generations to a healthy Earth could have lasting impacts on judicial and policy decisions for decades to come. ___________ Larissa Parker, 25, is a second-year law student at McGill University. She holds an MSc in Environmental Governance from the University of Oxford and a BA from the University of Toronto. She is a research associate at the McGill Law, Governance and Society Lab and works with the Youth Climate Lab. She is involved in grassroots activism through Climate Justice Montreal.