Climate Change and Statutory Construction: Administrative Law Expertise and “New” Emergencies

It is a legal truth grudgingly acknowledged that many administrative law cases in common law jurisdictions concerning climate change are cases dominated by legal arguments to do with statutory construction.¹ I say “grudgingly” for two reasons. First, statutory construction figures in most administrative law adjudication,² but it does not get the hearts of legal scholars racing. Statutory interpretation is viewed as too basic, and statutes are viewed as too legally second rate to raise juristic pulses.³ Second, anthropocentric climate change creates serious risks for human societies – now and more significantly in the future.⁴ Cases concerning climate change are often understood as strategic interventions on the part of litigants to force significant action in the face of an emergency.⁵ Recognising that these cases are statute specific does not easily fit into that narrative. Overall, responding to climate risks by interpreting legislative provisions, seems an underwhelming legalistic response to an overwhelming problem.

In this article I argue that the existence of statutory construction in climate change administrative law adjudication underscores the importance of thinking about administrative law in developing responses to climate change. Despite the rhetoric of a “climate emergency”, responding to climate change requires multi-faceted and long-term public action, particularly in the administrative sphere (Section B). The centrality of statutory construction in climate change administrative law adjudication reflects this fact (Sections C and D). That centrality draws attention to the need to foster administrative law expertise in relation to climate change which includes the evolution of administrative law imagination (Section E).

Three points to make before starting. This article focuses on legislation and case law from different common law countries, but it is not a comprehensive survey of climate change case law in the administrative law context.⁶ Footnotes are illustrative not exhaustive. While legal culture is always important to think about, this article engages in a relatively “thin” form of legal analysis.⁷ Second, this article provides an internal account of doctrinal reasoning in administrative law decisions concerning climate change.⁸ For this reason, I use “adjudication” not “litigation” to describe these judgments.⁹ I am not interested in the success of any particular legal argument. The purpose of my analysis is to draw attention to how statute dominates these cases and the implications of that for understanding the role of law in relation to climate change. Third, my focus on administrative law is not an argument to say adjudication in other contexts such as private law and constitutional law is not important.

As of 5 May 2023, 2,327 jurisdictions in 40 countries have declared a ‘climate emergency”.¹⁰ The phrase “climate emergency” is a way of communicating the seriousness of the risks that climate change poses for humans and the environment. Those risks are serious indeed. The Intergovernmental Panel on Climate Change’s latest synthesis report is more than sobering reading.¹¹ The adverse impacts of climate change are already occurring. They will continue and increase in the future. As the Panel states:

Risks and projected adverse impacts and related losses and damages from climate change escalate with every increment of global warming (very high confidence). Climatic and non-climatic risks will increasingly interact, creating compound and cascading risks that are more complex and difficult to manage (high confidence).¹²

The need for that systemic transformation is the reason for climate emergency declarations – they are devices for catalysing action. But they are not what is often thought of as a legally “conventional” emergency declarations – that is devices that result in the “suspension of the juridical order”.¹⁴ These declarations are usually made by “political” bodies, do not result in greater concentration of unaccountable executive power, and may not result in legal change.¹⁵ Climate change is not creating a “clean separation of normal law from abnormal legality”¹⁶ that can lead to a state of exception – “an anomic space in which what is at stake is a force of law without law”.¹⁷ The opposite in many ways is true. Climate change is mobilising a complex public law architecture.

Climate change is a collective action problem with many causes and many impacts.¹⁸ As with all tragedies of the commons, the power and authority of states necessary figures in effective responses to it.¹⁹ Public international law, particularly the Paris Agreement 2015, has framed climate change as a problem, coordinated sovereign state action in relation to it, and encouraged types of action such as emission trading schemes.²⁰ But, as the law of consenting states, public international law has limited authority. It has been nation states acting within their jurisdictions where public law has played the most significant role in responding to climate change. Some national action can be understood as directly flowing from international regimes,²¹ but by no means all. Responding to climate change involves top-down and bottom-up processes of change and integration of actions across governments.²²

In many national jurisdictions, legislation has been passed that creates frameworks for adapting and responding to climate change.²³ These often include relatively novel legal provisions, such as long term emission reduction targets,²⁴ which raise questions about their legal nature and enforceability.²⁵ Legislative provisions that require explicit consideration of climate change have also been included in statutes governing a range of activities.²⁶ These are all examples of what Scotford and Minas call “direct” climate change legislative provisions.²⁷ There are also many examples of what they call “indirect” provisions²⁸ – that is, legislative provisions that protect the environment and in so doing encompass climate change.²⁹

Most direct and indirect provisions are not self-executing. A common feature of these provisions is that they delegate decision-making power to administrative bodies and/or govern administrative practices.³⁰ Given the multiple causes and impacts of climate change, public administration at all levels of government is engaged. In some cases, new administrative institutions have been created,³¹ but existing administrative bodies have also taken on new tasks.³² Legislation has created new administrative regimes for managing climate change – processes for setting of carbon budgets for example.³³ Other provisions require, or empower, administrative decision-makers to consider climate change as part of their decision-making processes. That might include decisions concerning mitigation schemes³⁴ or decisions in relation to specific projects or activities.³⁵ Consideration of climate change may or may not be alongside the consideration of other environmental issues.³⁶ Climate change can also figure in executive and administrative policy documentation, both as a supplement and as a substitute for legislation.³⁷

For some public lawyers, the delegation of power to administrative decision-makers raises anxieties – administrative power is thought to be freewheeling and thus constantly needing to be constrained.³⁸ In the climate change context, that perception is largely incorrect – legislation is delegating to administrative institutions that already operate complex institutional and knowledge practices and are often being held to account in a range of different ways.³⁹ This is not an automatic reason to “defer” to decisions made by these institutions. Rather the point is that these administrative spaces are not “anomic” spaces.⁴⁰

But while public administration is not untrammelled in making decisions concerning climate change, it is also not a “transmission belt” delivering on pre-ordained goals.⁴¹ A significant reason for this is that “climate change” is multivalent. That is “it is so open to multiple meanings and interpretations. It provides us with none of the defining qualities that would give it a clear identity – no deadlines, no geographical location, no single cause, solution, or enemy”.⁴² That multivalence manifests itself in the administrative context in at least three different ways. First, decision-making about climate change is often requiring consideration across different sectors of government – both horizontally and vertically.⁴³ Vertical integration not only accommodates the relationship between national and international law but also the national and local levels.⁴⁴ Second, consideration of climate change requires decision-makers to work with longer time horizons than administrative decision-makers normally have in mind. Statutory net zero targets set at 2050 are an obvious example of this.⁴⁵ Third, it is not always clear what exactly should and should not be considered by administrative decision-makers when they are taking into account climate change. Are foreign lives relevant to an assessment of the social cost of carbon?⁴⁶ Does consideration of climate change require consideration of a particular temperature target?⁴⁷ In assessing the environmental impact of a mining project, do the carbon emissions from the end use of the mined product need to be considered?⁴⁸

Overall, then administrative choices need to be made about what is meant by “climate change” and what mitigation and adaption mean in relation to it. Those choices are not unbounded. The starting point for determining those boundaries are the statutes that govern a decision.⁴⁹ Such choices will also be in situations where recognising and responding to climate change is giving rise to all types of socio-political conflicts. Many argue that...