The Legally Disruptive Nature of Climate Change

Date01 March 2017
Published date01 March 2017
DOIhttp://doi.org/10.1111/1468-2230.12251
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THE
MODERN LAW REVIEW
Volume 80 March 2017 No. 2
The Legally Disruptive Nature of Climate Change
Elizabeth Fisher,Eloise Scotford,∗∗ and Emily Barritt∗∗∗
Climate change gives rise to disputes and problems not easily addressed by existing legal doc-
trines and frameworks. This is because it is a polycentric problem; the assessment of future
climate impacts must deal with uncertainty; climate change is socio-politically controversial;
and addressing climate change requires recognising a dynamic physical environment. As such,
climate change can be thought of as legally disruptive in that it requires lawyers and legal schol-
ars to reconcile the legal issues raised by climate change with existing legal orders. The legal
disruption catalysed by climate change has not only led to the creation of new legal regimes but
also given rise to a multitude of legal disputes that require adjudication. A study of some of these
cases highlights the need for active and deliberate ref‌lection about the natureof adjudication and
the legal reasoning embedded in it when confronted by a disruptive phenomenon like climate
change.
Climate change now f‌igures frequently in adjudication. Between 2013 and early
2015, there were over 394 cases in the UK, US, Australia and Canada in which
a legal dispute related in some way to climate change.1Unsurprisingly, much
literature has been written on climate change in the courts: mapping climate
change cases and considering how to def‌ine the scope of such case law;2
Professor of Environmental Law, Faculty of Law and Corpus Christi College, University of Oxford.
An earlier version of this article was presented at the Adjudicating the Future: Climate Change and the
Rule of Law Symposium, London, 17-19 September 2015. The authors would like to thank attendees
at that symposium and three anonymous reviewers for feedback on earlier versions of this ar ticle.
Any omissions or errors remain our own.
∗∗Senior Lecturer, The Dickson Poon School of Law, King’s College London.
∗∗∗
Teaching Fellow in Tort Law, The Dickson Poon School of Law, King’s College London and
Centre Fellow, Centre for Environment, Energy and Natural Resource Gover nance, University of
Cambridge.
1 We would like to thank Randall Stephenson for undertaking this case review for us. For
other surveys of the case law see n 2 below and Sabin Center for Climate Change Law at
http://web.law.columbia.edu/climate-change (last accessed 27 July 2015).
2 D. Markell and J. B. Ruhl, ‘An Emprical Assessment of Climate Change in the Courts:
A New Jurisprudence or Business as Usual?’ (2012) 64 Florida L Rev 15; J. Lin, ‘Climate
Change and the Courts’ (2012) 32 Legal Studies 35; B. Preston, ‘Climate Change Governance:
Policy and Litigation in a Multi-Level System Climate Change Litigation (Part 1)’ (2011) 1
Carbon and Climate Change Rev 3.
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(2) MLR 173–201
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Climate Change and Legal Disruption
examining litigation as a tool for forcing legal responses to climate change;3
exploring the role of courts in possible legal responses to climate change;4
and analysing specif‌ic cases.5Much of this literature has treated courtrooms as
another forum for politics. As a consequence, policy, commentary and debate
tends to pivot around discussion of whether or not courts should act as such a
forum.6
The purpose of this article is different – it takes an ‘internal’ legal perspective7
and explores the way in which existing legal doctrines and frameworks are
forced to confront, respond, and perhaps even evolve to respond to climate
change, beyond the application and incremental development of existing rules
and doctrines. In this regard, climate change may be thought of as legally
disruptive in that it requires a ‘break’ in the continuity of existing legal practices
and doctrinal ‘business as usual’. Climate change is not the only problem
that provokes legal disruption,8but its highly polycentr ic, uncertain, socio-
politically charged and dynamic nature presents particular challenges for legal
orders and adjudication. These characteristics potentially place climate change
in a different category of legal disruption, as the widespread legal challenges
it presents ref‌lect the fundamental upheaval of social and economic orders
threatened by climate change.
Most obviously, climate change causes legal disruption in that it has led to
the creation of new legal regimes at all levels of government. However, climate
change has also been highly disruptive of adjudicative processes and the article
focuses on this form of disruption. Climate change is disruptive of adjudication
in a variety of ways, including when courts are required to determine whether
or not to decide a dispute; when the issues presented f‌it awkwardlyinto existing
and well-honed grooves of legal reasoning; and when there are legal disputes
about the nature and operation of bespoke climate change regimes. In all
such cases, climate change requires lawyers and scholars to reconcile any legal
disruption with the fundamental role that adjudication plays in maintaining the
3 J. Peel and H. Osofsky, Climate Change Litigation: Regulatory Pathways to Cleaner Energy (Cam-
bridge: CUP, 2015); R. Lord et al (eds), Climate Change Liability: Transnational Law and Practice
(Cambridge: CUP, 2012); N. Singh Ghaleigh, ‘“Six Honest Serving Men”: Climate Change
Litigation as Legal Mobilisation and the Utility of Typologies’ (2010) 1 Climate L 31.
4 Two recent high prof‌ile examples are: International Bar Association Presidential Task Force on
Climate Change Justice and Human Rights, Achieving Justice and Human Rights in an Era of Climate
Disruption (London: International Bar Association, 2014) and Oslo Principles on Global Climate
Change Obligations at http://www.osloprinciples.org/ (last accessed 1 November 2015).
5 For example, the literature responding to Massachusetts vEnvironmental Protection Agency 549 US
497 (2007) (Massachusetts). See E. Fisher, ‘Climate Change Litigation, Obsession and Expertise:
Ref‌lecting on the Scholarly Response to Massachusetts v EPA’ (2013) 39 Law And Policy 236.
6 Compare Peel and Osofsky, n 3 above, with L. Bergkamp and J. Hanekamp, ‘Climate Change
Litigation Against States: The Perils of Court Made Climate Change Policies’ (2015) 24 Euro-
pean Energy and Env L Rev 102.
7 Although such an internal approach is a ‘highly f‌lexible’ one: C. McCrudden, ‘Legal Research
and the Social Sciences’ (2006) 122 LQR 632, 635.
8 As Johns, Joyce and Pahuja point out in the international law context, with ‘wars, forced
migrations, environmental catastrophes, pandemic outbreaks, trade breakdowns, mass grave
exhumations, technological breakthroughs: the international legal imaginary is littered with
ruptive instances’: F. Johns, R. Joyce and S. Pahuja, ‘Introduction’ in F. Johns, R. Joyce and S.
Pahuja (eds), Events: The Force of International Law (Abingdon: Routledge 2011) 1.
174 C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(2) MLR 173–201

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