Climate Justice: A Call for Leadership

Introduction

Defining justice, as it relates to the relationships between people is challenging; integrating the environment adds another level of complexity. Climate is an important environmental justice issue. There are many reasons for this. First, climate and climate change is socially and culturally perceived and constructed; ¹ therefore making necessary changes to reduce greenhouse gases (GHG) requires social action. Second, there is an inequitable global distribution of climate change impacts and adaptive capacity among rich and poor countries. ² Finally, historic greenhouse gas emission patterns arguably impact and inform the political and legal landscape into the future.

No one discipline has a monopoly on defining environmental justice and as a result, various themes emerge. This article draws from literature on legal justice, distributive justice, participatory justice, and an ethical practice, building a definition of climate justice and confirming this definition through survey. Three hundred and eleven contacts of member states, participants, and observers of the United Nations Framework Convention on Climate Change (UNFCCC) completed a survey of both closed (10) and open-ended (7) questions through a Vovici survey platform. ³ Questions probed issues of environmental justice including perceptions of a fair distribution of emission reduction obligation, satisfaction with the UNFCCC processes, and what improvements were required.

Defining Environmental Justice from a Legal Perspective

Legal environmental justice is enshrined in laws, regulations, and civil court actions which are important for people seeking either redress (or compensation) from environmental harm and/or protection from future environmental degradation. Legal environmental justice in relation to climate has two major components:

1) It is that justice which can be attained through legal tools and institutions to compensate for harm occurring as a result of climate change and to protect claimants from future harms as a result of climate change, especially when there is a deficit in contributory negligence (contribution to GHG emissions proportionally).

In respect to the impacts of climate change, legal actions have been commenced and weathered initial legal challenges but to date no successful precedents have been set. ⁴ Legal opinion confirms a credible case for a legal wrong can be made with affected countries having a substantive right to demand the cessation of a certain amount of carbon dioxide (CO2) emissions in order to limit further harm (and secure their survival). ⁵ Several lawsuits in relation to climate change have commenced. ⁶ The Warsaw International Mechanism for Loss and Damage associated with Climate Change Impacts will help vulnerable developing countries deal with irrecoverable losses and damages from climate change. ⁷ More needs to be done as legal climate justice has its drawbacks: it is elusive, a slow, reactionary, time consuming, and expensive process; ⁸ governments are inactive; courts are not generally accessible; and often commencing legal action only moves environmental problems to another community. ⁹

A legally binding and enforceable agreement on GHG emission reduction obligations would aid in achieving legal justice. ¹⁰ Not having a legally binding agreement together with enforceable remedies at the UNFCCC level is a serious shortcoming to achieving climate justice and an item of considerable dissatisfaction for 84% of survey respondents. When asked what respondents' biggest area of dissatisfaction with UNFCCC negotiations was, 53% of respondents identified the inability to achieve a legally binding agreement. Negotiators should not lose sight of this goal for a legally binding enforceable agreement.

Defining Environmental Justice from a Philosophicalperspective—Distributive Environmental Justice

Climate justice is fundamentally a question of distributive justice ¹¹ as such it should entail a fair distribution of environmental resources or benefits (including carbon intense activities) and also environmental burdens, including the impacts of climate change from GHG emissions ¹² and ability to adapt. ¹³ The cause of human induced climate change is disproportionately attributable to the developed world (which includes Canada, the United States, and Europe) but many of the most severe effects will be experienced by the developing world. Small island states, such as the Maldives or Kiribati, are the countries who will be most significantly affected by the reduction of land mass attributable to rising sea levels and have the least resources to adapt. ¹⁴

Survey respondents allocated obligations for GHG reductions predominantly to umbrella states (which include Canada, the U.S., and Australia) (40% of reductions), the European Union (30%), China 77 (20%), the Environmental Integrity Group (10%), Africa (0%), and small island states (0%). A large degree of consensus existed surrounding the minimalistic allocation of any emission reduction obligations to least developed countries, the small island states, Environmental Integrity Group, and Africa. Fifty-six percent of respondents believed that a specific country should be separated out from the categories identified above. Of a total of 180 parties identified by respondents as warranting separation, 30% identified China, 17% identified the United States, and 14% identified Brazil. All other countries identified had a frequency of less than one percent. The consensus identified in the survey draws attention to the power dynamics existing at past Conferences of the Parties (COPs) that have prevented achieving the legally binding agreement and fair distribution of GHG emission reduction obligations. Participants at the COPs need to seriously contemplate this problem. As this degree of consensus exists, the inevitable question arises: Why is a legal agreement with an equitable distribution of obligations elusive? Furthering the definition of climate justice to include authentic participation and ethical practices answers this question.

Defining Environmental Justice from a Political Science Perspective—Participatory Environmental Justice

Participatory environmental justice offers a solution to the shortcomings of legal and distributive justice by allowing people to participate and decide in the distribution of resources, benefits, costs, and pollution. ¹⁵ Participatory climate justice at the UNFCCC arguably entails a COP in which all countries, non-governmental organizations, and people have authentic participation, meaning they are actively engaged in discussions, have their concerns addressed, and ultimately contribute to and endorse decisions of the UNFCCC. First all countries need this authentic participation, and then the participation of non-governmental organizations needs to be incorporated.

Survey results reflected the dissatisfaction of respondents as a result of being excluded from COP negotiations by powerful state actors. Sixty-one percent of respondents did not feel that their country adequately contributed to the COP outcome. The reasons were:

(a) Weak leadership and inadequate representation;

When asked the open-ended question of what ideal participation for the respondent's country would have entailed, almost half of the respondees indicated that the process should be changed. Several significant themes emerged including “stronger and better leadership, better cooperation (improved dialogues and meetings), the increased involvement of advisors or experts, more participation of civil society, and more democratic selection of delegates.” Several respondents wanted a contact group to be formed to study new protocols under the UNFCCC and suggested protocols included deliberating on specific environmental proposals earlier in the process, incorporating multi-track negotiations as well as increasing the opportunities for member states to negotiate quietly in the corners and reach small bilateral agreements. A new vision of leadership and consensus at the COPs is required. A total of 18% of respondents in the survey agreed: “more resources for smaller countries to participate and more discussion about cases rather than numbers” were needed in the UNFCCC. Another respondent stated ideal participation would be:

Participatory environmental justice recognizes and provides for respectful recognition of diverse perspectives and knowledges (not always described as “scientific” but as “traditional” or based on past practice). ¹⁶ Meaningful participation through consultations, feedback mechanisms, public review processes, and activist modes are necessary. Environmental justice policy implementation surrounding climate at the municipal and state level evidence a diversity of frameworks in social, historical, cultural, and economic contexts with diverse participatory practices which needs to be captured within the COPs. Municipalities in Canada, Mexico, and the United States are active in climate initiatives and a great deal of literature evidences these positive efforts. ¹⁷ An emerging movement of coalitions between environmental groups and communities are strengthening communities by defining common interests, uniting people and groups from a wide range of backgrounds advocating for more equitable and ecologically viable practices. A wide range of mechanisms at the municipal level (participatory planning), ¹⁸ state-level funding of local GHG reduction efforts (as in California), ¹⁹ multi-lateral agreements for GHG reductions with technology exchange and funding of clean energy, ²⁰ new partnerships and tools, ²¹ carbon markets created by private energy companies, governments, cities, and businesses, ²² have given a meaningful voice and leadership role to a variety of groups.

The UNFCCC process needs to capture this diversity in leadership and decision making by linking with different fora where this is occurring. These important initiatives and commitments should inform discussions at the nation-state level and ultimately the international level of the COPs of the UNFCCC and act as a basis upon which to build similar and further commitments. Through a series of side events, Cities for Climate Protection, provincial and regional governments, private businesses, and communities could contribute to the Conference of the Parties. Events would allow for sharing of mitigation strategies and policies. By developing GHG reduction strategies and policies from the ground up in this manner, peer pressure to replicate these targets and measures by other cities, provincial or state governments, private businesses, and communities would occur and the pressure could drift upwards and be consolidated at the level of state actors of the UNFCCC. This would counter any powerful state actors' ability to stall negotiations, dilute commitments, and ensure the current UNFCCC processes have better results. ²³ This proposed process would maintain the UNFCCC's commitment to consensus decision making but in a manner that would facilitate consensus. Employing this revised process, a legally binding and legally enforceable agreement could be achieved, instead of an “accord” privately negotiated by an elite group leaving others excluded, ²⁴ allowing new ideas and fresh proposals. ²⁵ Drafting a climate agreement incorporating participatory justice would start with documenting existent commitments, expanding these commitments to geographically diverse, but similarly situated actors.

The important presence and contribution of non-profit and activist groups in determining and constructing environmental climate justice should be recognized. Not only were these groups present in the activities surveyed surrounding participatory processes and the local community and city level discussed above, but they are also present and should be recognized in more meaningful ways at the UNFCCC level. ²⁶ These groups have a plethora of work, thought, and material in relation to environmental climate justice and often represent the interests of the neediest. Increasing their contribution to the UNFCCC processes and participatory mechanisms of the UNFCCC would advance climate justice.

Defining Environmental Justice Using Ethics—Including An Environmental Ethical Practice

To counter any hegemonic power structures ²⁷ the participatory processes of engagement must set the stage for the adoption of a standard for ethical practice so that current structures of decision making in the UNFCCC do not simply recreate and promote structural inequality. The concerns of the “neediest” must be taken into account. In respect to climate change, these are the people most vulnerable to climate change as defined by exposure, sensitivity, and adaptive capacity. ²⁸ Within the context of climate justice and environmental decision making, the “neediest” or least favored are those experiencing a disproportionate share of environmental burdens, pollution, and climate change risk that lack capacity to adapt to changing climate. As such a vulnerability-based leximin rule suggests that when the neediest are best taken care of then the second neediest are then taken care of. ²⁹ If this component is not adopted, a danger of participatory mechanisms for decision making is that marginalized people continue to be marginalized; the hegemonic power structures continue to operate in participatory environmental decision making bodies. ³⁰ Adopting a philosophy of the principle of leximin, or making decisions taking into account the position of the least favored, neediest person, or most vulnerable in society, alleviates the potential of hegemony. Adopting this principle as an objective of the UNFCCC would create a new tool to achieve climate justice.

Pursuing Climate Justice

Climate justice and its ultimate achievement is made up of a legally binding, enforceable agreement incorporating a fair allocation of GHG reduction commitments with a good chance of limiting global warming. This agreement would be monitored by an institutional structure at the UNFCCC in which all countries participate, have their concerns addressed, and endorse decisions. In addition to countries, participatory processes should be expanded to give non-governmental organizations meaningful input. As many state and municipal actors are making significant inroads into mitigation and adaptation efforts, these actions and commitments should build legally binding commitments in a bottom-up manner at the COP. Most importantly, all should be guided by an ethical practice of leximin in which the needs of the most vulnerable to climate change are taken care of. In this way climate justice is constituted by legal justice, distributive justice, participatory justice, and an ethical practice of leximin. Survey respondents demonstrated a consensus on these issues, so what is preventing this achievement at a COP?