Climate Constitutionalism

An effective response to the climate crisis requires a debate on the limits and scope of state power

Detail of Hobbe’s “Leviathan” title page — © The Trustees of the British Museum

In January, amidst the global COVID19 pandemic, the Netherlands hosted a digital Climate Adaptation Summit. At the event, many government leaders framed post-pandemic recovery in terms of adaptation to a changing climate.

The topic seems to be widely embraced at this point. US President Biden ran his campaign promising that every dollar spent toward rebuilding would be used to “withstand a changing climate.” He appears to be making good on that promise. As part of its response to the COVID19 crisis, the European Union too has established a 672 billion Euro Recovery and Resilience Facility, supporting measures including adaptation. These are all indications that governments are willing to provide remarkably cheap public finance to support state-directed investments in green infrastructure, promoting climate adaptation as a way of stimulating the economy.

Businesses are also committing to this thesis, recognising the inherent risks in a changing climate. Blackrock CEO Larry Fink recently stated of climate change, that it should drive everyone “to consider how, like the pandemic, it will alter our lives.” McKinsey & Company, the global management consultancy, released a report arguing that “risk from climate change is already present and growing.” Given the increasing evidence that unavoidable shifts in the climate system are underway, this focus on adaptation should be applauded.

However, any time a state promises to wield power on a society-wide scale — in this case, to climate-proof the entire economy — the sources and scope of its legitimacy should be debated. And every time the business sector unanimously calls for state intervention, its assumptions should be examined. Without such debate, perceived abuses or ideological opposition could end up disrupting even the most well-meaning response, thus materialising the very risks we are trying to avoid.

The definition of the boundaries of the state is the principal preoccupation of modern constitutionalism: in this sense, adaptation to climate change on a significant scale should represent a constitutional event. Indeed, in some countries’ courts, such a constitutional turn has already begun.

In 2015, Urgenda, a nongovernmental organization, sued the Dutch government over its failure to meet the emission reductions it was committed to as part of its international obligations. Urgenda argued that, as a low-lying nation, the Dutch population faced significant physical risks, as described in the IPCC’s definition of “dangerous climate change.” This was evidence, according to Urgenda, of negligence by the Dutch state.

While initially framed as an application of tort law, by the time it reached the Supreme Court in the Hague, the case had become about human rights. Article 2 of the European Convention on Human Rights protects the right to life. If there is a significant risk to people’s lives or welfare, a contracting state is obliged to take suitable measures to mitigate it. The Supreme Court accepted that climate change presented such a risk and ruled in Urgenda’s favour on December 20, 2019, compelling the state to pursue larger emissions cuts.

Two aspects of the Urgenda legal battle are striking: the first is that this case is evidence that climate projections have now become an accepted basis for jurisprudence, much like epidemiological data already is for public health cases; the second is that recourse to the human rights convention has constitutionalised the issue of climate adaptation, shifting the focus from risks faced by specific plaintiffs to those faced by the population as a whole, again similar to historically happened in the judicial review of public health cases.

Seen through the lens of state responsibility, therefore, the on-going health crisis provides a useful analogy for the challenges faced by nation-wide adaptation to climate change. Much like a pandemic response, adaptation requires collective action to manage imminent population-wide risks. Much like a pandemic response, adaptation will be mediated by the state, through its political, economic, and, in some cases, military resources. And just like a pandemic response, state action for adaptation will carry significant implications for state power.

Environmental management and public health both pervade the legal system, from infectious disease control to standards on food health and safety, lending themselves to public management. And both rely on pervasive institutions created by statute and through systems, laws, agencies, services, and significant appropriation of funds.

But what distinguishes public health management from environmental management in most societies is that the former has gone through far more extensive constitutional debate. For example, the US Supreme Court introduced the use of police powers for public health through Jacobson v Massachusetts in 1905, which established that a community had the right to protect itself against an epidemic that threatened its members — in this case against an individual who refused smallpox vaccination.

The full extent and depth of powers such as those has been in full display in most countries during the COVID19 pandemic, when lock-downs curtailed ordinary freedoms, something that, in a rule of law systems, can seldom happen without a trial. Indeed, modern constitutionalism developed alongside health crises — epidemics of smallpox or yellow fever were endemic in the first half of the 20th century — giving public health deep institutional roots.

In most democracies, a century of judicial review has produced a large body of constitutional doctrines, illuminating the relationship between individuals and the state in managing public health. We are the beneficiaries of decades of debate on the importance of public health; of large bodies of epidemiological data, which have won the confidence of both courts and politicians; and of huge investments in a complex web of institutions — government agencies, universities, regulators — that have built trust over time. These and other factors have helped citizens converge on a set of principles making public health a top collective priority.

Will adaptation require a similar level of scrutiny, public debate, and judicial oversight? If environmental management is to become as existential an instrument of society, then yes. Without it, we run significant risks. Twentieth century history offers important lessons in this regard.

The most salient societal adaptation to date has been in response not to a change in Earth’s climate, but rather to a shift in expectations. In the early 20th century, over the course of a handful of decades, humanity tripled in size, societies transitioned from rural to urban communities, and a consumer economy emerged.

These transformations demanded that the state act to absorb the climate risks that stood in its way. Floods and droughts — common climate features of the agrarian landscape up to that point — had to be controlled, if people were going to be free to live at the relentless beat of the modern economy. Further, the public health risks associated with lack of clean water and sanitation, and with limited electrification were no longer tolerable for consumer societies which, at least in principle, were trying to enfranchise the majority of their population.

From an environmental management perspective, the response was breathtaking. The United States, the Soviet Union, Japan, and most European countries completely replumbed their landscapes, to insulate society from ordinary climate risks and harness the power of rivers for development. National and international rivers became blueprints for industrialization. Dam after dam went up to produce power for factories and cities. Embankments and control infrastructure multiplied to prevent floods from interfering with transport networks. Vast irrigation systems supported expanding food supplies. It was a physical transformation designed to control an unruly environment in service of economic growth, accelerated by the need to respond to the Great Depression. It was the largest adaptation to climate conditions in human history.

But that transformation also heralded significant adjustments to the boundaries between society and the state, adjustments that had long-term consequences. For example, one of the most famous American vehicles for infrastructure development was the Tennessee Valley Authority (TVA). But the TVA was not just an infrastructure developer. It became the central social engineering project of the New Deal, an institution with extraordinary executive powers, capable of expropriating land to pursue economic development in the name of the public interest. It went on to define a modernization model that spread through the American sphere of influence.

While the TVA, Hoover and Fort Peck dams rose to become icons of American modernization, Stalin’s Soviet Union or Mussolini’s Italy embraced an infrastructural conquest of their own landscape in service of authoritarian propaganda. More recently, the remarkable engineering of Chinese rivers was central to its late industrialization, accompanying the most remarkable economic development program in modern history.

All these state interventions represented extraordinary displays of sovereignty, in which the state modified conditions on the landscape in service of collective security. They also elicited strong societal responses, once unintended consequences emerged and when political systems proved incapable of intermediating associated claims, whether from displaced populations or communities that had been left behind or wronged.

The substantial backlash to the modernist redesign of the planet’s landscape grew over the course of the second half of the 20th century, fueling the global environmental movement. Despite Roosevelt’s efforts, the TVA was never replicated on American soil, so strong was the perception that it represented a vast over-reach of federal power. And mid-century authoritarian control over the landscape inspired an anti-dam, anti-infrastructure sentiment that spread the world over.

Today, societies are going to pursue adaptation on a national scale once again, although this time it will be a response to a changing climate rather than an adjustment to existing climate due to changing expectations. As the adaptation agenda returns to the mainstream of public policy, most societies will have to confront once again the tension between collective benefit and individual rights. What past experience and public health both show is that, despite the enthusiastic scientific framing of most recovery programs, this is not a technocratic problem: it is a deeply political one.

Without a shared understanding of where individual rights end and collective responsibility begins in the process of adapting, any systematic transformation of the landscape will be an uphill battle, whatever the intent. Climate adaption projects cannot become a staple of public policy if they are merely technocratic in nature. Rather, they must embody a new contract between the state and its citizens. There must be a constitutional arrangement that defines the risks a society is willing to endure, and that sets a threshold for taking collective action against intolerable threats.

This is a crucial moment. As the Urgenda case and others that have followed have shown, climate science is acquiring normative value, sufficient to be the basis for jurisprudence. Evidence for the need to adaptat is propelling state action. If the deployment of such power is going to succeed in helping human societies adjust to a changing climate, it is imperative, that alongside investment plans and technical solutions, consideration is also given to the principles by which state intervention will be limited and which risks are going to be acceptable. Insofar as limits on the exercise of state power are the bedrock of modern constitutionalism, the societal embrace of climate adaptation represents a significant constitutional moment.

A shorter version of this piece appeared in Project Syndicate on March 16, 2021.

Author, physicist, climate scientist. Expert on natural resource security issues. Environment executive. Legendary ocarina player - www.giulioboccaletti.com

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