A Climate Law Story
Original version in English
On a quiet weekday morning this past June I sat on a beach in New Jersey and watched my daughter and son, along with two of their cousins, all of them healthy and lively teens and tweens, as they stood ankle deep in the Atlantic, toying with the idea of diving in. The latest heat dome had settled on top of the northeastern United States, bringing with it the latest record-breaking temperatures. Here on the beach, though, the wind blew steadily in off frigid water, carrying a perceptible chill through the air. A swim felt more like a challenge to take on than a pleasure to enjoy – or than a necessity to stay alive. Back at home in New York City, people were crowding into cooling centers, sharing whatever outdoor shade could be found. I thought of video clips from China from a couple years ago, during an earlier record-setting heat wave, where people packed so tightly together into wave pools they could barely turn around. I thought of the opening chapter in Kim Stanley Robertson’s The Ministry of the Future, where a heat wave in India causes people to seek refuge in a lake, only to find the water is too warm to provide their bodies with the needed relief, and so they die.
The surf was mild, the wind lifting up small waves that crowned and broke into a ticklish white foam. A boy, shirtless, maybe six years old, his torso bronzed and his brown hair tousled, traipsed after his older brother across the soft sand toward the ocean’s edge. The older boy marched in, up to his waist, and turned to watch his sibling follow. But the younger one was scared. Not of the cold, which wouldn’t affect him, but of the small waves and the white foam and the loud sound. He was worried, it seemed, of what the power of the water coming inland would do to him. I imagined what a predicted three feet of sea level rise in the next 75 years will do to our civilization and thought, He has no idea how scared he should be.
I’m not always like this. But oftentimes I am.
Just the week before my family beach day I sat in a large conference room with two dozen of America’s leading environmental lawyers, discussing the state of play in the courts and legal strategies to address the climate crisis in the months and years ahead. As tends to happen in such contexts, the conversation shifted away from which claims to bring against which governments and corporations, away from statutes and legal doctrine and case law, to story. How to frame the narrative. How to move the audience. Whether to lean into the technical aspects of climate change law and policy— economics, engineering, ecology—or into its more human elements—individual characters, our lives and livelihoods, the communities in which we are placed in time and space. We wondered out loud whether it is more powerful to invoke fear, or to provide hope.
Climate apocalypse? Or sustainable utopia? What do people need to hear, see, feel, believe, understand, know, want, or imagine? Taking action on the climate crisis is not easy. Its causes are pervasive—they arise on every level, and everywhere—stemming from the carbonized core of the global enterprise. Its solutions are systemic, massive in scope and scale, reflecting profound reformations of our social and industrial infrastructures.
On an individual level, taking climate action often means sacrificing convenience, chancing the new, enduring significant change. It involves prioritizing the future over the present, weighing the indirect effects of things we do on people we don’t know and places that are far away. These realities, distant in time and space, can feel essentially imaginary. Our brains are not hard-wired to take action for their benefit. On the societal level, we are confronted with what sociologists have terms a “super-wicked problem,” one with billions of stakeholders with competing priorities, no central authority to decide who gets what, no one right answer, and, even in the best of all possible worlds, no final resolution. Because once we do get things set up—once the bold vision for a just future is articulated, and the rules of the road are laid out, and the plans for kicking our fossil fuel addiction are in place, and the incentives for renewable energy are aligned, and the support systems for coping with heat waves and rising seas are operational—the crisis will not be over. The climate will continue to change for years to come. The problem will survive our best efforts to address it. Which only makes it more complex. More super wicked.
Back on the beach, I was talking with my sister and another of my nieces. I asked them what they needed to hear in order to be motivated: hope or fear.
“Hope,” my sister said. She is 45 years old.
“You’d like me to show you a future in which all people are comfortable, all politics are progressive, economies are sustainable, and we live happily ever after?”
“Exactly.” She smiled.
“Fear,” my niece said. She is 17.
“You need me to show you heat domes and wildfires and floods and famine and mass migration and pandemics?”
“Yes.” She did not smile. “And that other people are doing something, too.”
One way or another, the lawyers in that conference room know that making progress on climate change through the courts is not only a matter of winning legal arguments but also of winning hearts and minds, and of leveraging those wins to shift power. United States Supreme Court Chief Justice John Roberts famously claimed that the role of a judge is analogous to a baseball umpire calling “balls and strikes” – they don’t make the rules, they just apply them in a neutral, objective fashion. The statement was hopelessly blindered, perhaps even an intentional misdirection. Judges, after all, are people, too. They have their cognitive commitments. They belong to their epistemic tribes. They are pursuing their own personal and political agendas. They are ensconced in their milieus. (Consider recent U.S. Supreme Court decisions eliminating women’s constitutional right to abortion and seeking to undermine the country’s administrative and regulatory apparatus.) As a consequence, the law is not a fixed, immutable thing. It is not set in stone.
It is alive, and breathing, and moves over time, and sometimes it does so in large jumps rather than small steps. The lawyer’s job is to persuade the judge not only that logic and written rules require a specific outcome when applied to particular facts, but also to imagine the law moving in the desired direction. For many years environmental law in the United States, as in some other places, has imagined a recovery of a lost past, a return to Eden, and sought to salvage what could be salvaged from the wreckage of our industrial economy and our extractive uses of the land. But the climate crisis calls for new understandings of the ways in which the law reflects our relationship to the natural world, and to each other. It demands that we think not of the past we want to return to, but the future we want. It asks us to ask, as Ayana Elizabeth Johnson does in a new anthology: What if We Get It Right? Leaving the beach that day, making my way home from that legal strategy session, thinking about it now, I can start to see the contours of this new, climate-inflected law. It is rooted not in recovery and salvation but adaptation and sustainability. It envisions not a top-down, command-and-control regime but a diversity of individuals and communities operating independently and in relationship at multiple scales and along a variety of horizontal and vertical planes. It perpetuates a system of property, of what we own and call our own, as interconnected, not exclusive, and as something held for the benefit of others. For humans and nonhumans, those we know and those we don’t, now and in the future.