Monday, October 25, 2021

Precommitment Strategies to Avoid the Justice Worst Case in the Climate Worst Case

Open-eyed assessment of the potential for and on-the-ground realities of 4 degrees of warming supports the implementation of extraordinary and immediate mitigation measures and portends that, even with such measures, climate impacts will strain adaptive capacity to the breaking point and beyond, resulting in significant societal dislocation and loss and damage.  In both contexts—the implementation of extraordinary mitigation measures and adaptation to high level warming —urgency and need have the potential to sideline or overwhelm justice. 

In the context of extraordinary mitigation, environmental review processes and community engagement—important mechanisms for exposing and preventing environmental injustice—are already eyed warily as speed bumps to be streamlined, truncated, or waived to avoid impeding the rapid deployment of mitigation infrastructure.  In the context of adaptation to high level warming, societies will transition from a steady state punctuated by the need to manage periodic emergences to a near-constant state of managing emergency. Responses to the pandemic reveal the ease with which emergency can overwhelm justice.  Vaccine nationalism evidences the instinctive national hoarding borne of unfolding emergency; domestically, the pandemic’s disproportionate impact on low-income communities and communities of color illustrates emergency’s exacerbation of vulnerability. 

It is hard to imagine that, faced with successive and deepening domestic climate emergencies (and resulting internal displacement, food insecurity, and political instability), a 4-degree United States will have the inclination or resources to send adaptation assistance abroad, regardless of the relatively more severe harms befalling its developing country neighbors and its conceded role in exacerbating those harms.  And it is easy to imagine how, within the United States, scarcity and struggle could sap the motivation and capacity to attend to justice.  The best intentions—for example, to manage internal migration to support successful relocation by low-income communities, avoid climate gentrification, and prevent receiving locations from adopting discriminatory policies, a tricky task in the best of times—may yield to the urgency of other, more pressing adaptation needs.

Can we prevent the urgency of avoiding the climate worst case and the exigencies of adapting to it from eclipsing justice?  Incorporating binding precommitments to rough justice, triggered and enforceable through automatic processes and made in the relative cool of now as opposed to the heat of later, into mitigation and adaptation law could help.  Key aspects of a precommitment strategy might include that it is binding (not easily reversed—set out in statute as opposed to regulation, for example), automatic (triggering a clear and measurable outcome or duty that is not dependent on the exercise of discretion), and early (the commitment should be made prior to the circumstance(s) in which it would be implemented).  Such precommitment strategies are unlikely to achieve fully just outcomes (and might best be accompanied by other, more typical mechanisms for advancing justice), but they could help to prevent least just outcomes.  (Of note, the phrase precommitment strategy is used here in a broad sense and does not refer specifically to restraints on near-term rollbacks of climate policy for the benefit of future generations, although some advocate for such precommitment approaches to buttress climate mitigation policy; however, the concept is similar.)

New York’s Climate Leadership and Community Protection Act provides an example of a precommitment to justice as well as examples of more typical efforts to advance justice that might prove less durable in the face of high-level warming.  The statute provides that disadvantaged communities “shall receive no less than thirty-five percent of the overall benefits of spending on clean energy and energy efficiency programs,” giving statutory force to the recognition that environmental justice includes  equitable distribution of benefits.  This precommitment is automatic, binding, and early—a clear duty, enshrined in statute and decided prior to the distribution of funds.  The statute contains many other mechanisms for incorporating justice into mitigation and adaptation policy, some of which come close to a precommitment to justice by mandating a relatively clear duty and others that require too much judgment or discretion in their application to be considered automatic. 

For example, in developing regulations to implement statewide greenhouse gas emission limits, the department is required to “[e]nsure that activities undertaken to comply with the regulations do not result in a net increase in co-pollutant emissions.”  The bar on an increase in co-pollutants constitutes a relatively clear statutory command, but the need to evaluate whether and how the department’s regulations prompt an increase in co-pollutants introduces some uncertainty about the automaticity of the command—whether its violation would be clear and the command readily enforceable.  The department is also exhorted to “[p]rioritize measures to maximize net reductions of greenhouse gas emissions and co-pollutants in disadvantaged communities,” a charge that is not sufficiently clear to constitute a precommitment.  All these efforts to advance justice through mitigation and adaptation policy are good; the present point is simply that precommitments may prove especially durable and valuable as we face high level warming.

What might precommitments to justice look like in other contexts?  With respect to the knotty problem of balancing fulsome review with speed in siting and deploying mitigation and adaptation infrastructure (knotty in part because there are important justice values served by achieving rapid, effective mitigation and adaptation), a precommitment to justice might take the form of preserving process where it is most likely to serve justice, i.e., by streamlining, truncating, or waiving environmental review processes except in environmental justice communities.  So, a high-voltage transmission line (or an industrial-scale solar array or wind farm or grid-scale battery storage) would be eligible for streamlined review and process if located to avoid environmental justice communities.  This would create a disincentive to locate undesirable mitigation infrastructure in environmental justice communities, thereby countering the many forces, like low cost and less effective community opposition, that tend to pull such undesirable land uses to them.  And it would preserve process for communities most likely to need the protection that process can afford.  The interests of residents of these communities may be less well-represented in upstream decisionmaking, community members may not be positioned to access other levers of power to prevent harms, and members of these communities may already be suffering from higher burdens of cumulative environmental harms.

Precommitments might also—building on the idea that they should be early in time—take the form of automatic transfers that occur only if/when certain warming thresholds are crossed (contingency).  Efforts by low-lying island states to seek compensation for loss and damage have gained little traction on the world stage despite the strong moral claim that underlies them and the foreseeable perils these nations face.  (Although loss and damage is addressed in Article 8 of the Paris Agreement, the Decision adopting the Paris Agreement states that “Article 8 of the Agreement does not involve or provide a basis for any liability or compensation.”)   

But what if low-lying island states proposed that polar assets, increasingly valuable in a warming world and subject to disputed claims of ownership, be understood as part of our common heritage except that interests in polar assets (ownership, shares, or other mechanism for profit sharing) will, by prior agreement, be automatically transferred to citizens of low-lying island states should certain warming thresholds be crossed or climate impacts realized?  An early, contingent precommitment may reduce opposition (states aren’t being asked to transfer wealth now or perhaps ever) and create a global incentive to mitigate to avoid crossing those thresholds. 

Or imagine adopting as an adaptation policy now a contingent precommitment to grant title in public land in climate-safe(r) locations upon the crossing of identified climate thresholds to tribes whose sovereign lands become uninhabitable as a result of climate change.  This could be done without requiring tribes to cede ownership of or formally abandon land to which they are deeply connected.  Even areas unsuitable for permanent communities might retain significant value for visitation to allow tribal members to maintain a connection to place.  Together, these factors could encourage safer, earlier relocation.

As pie in the sky as some of these ideas sound, just outcomes may be more in reach now than they will be in the decades to come—in the heat of the moment, competing against a multitude of pressing climate concerns.  Any precommitment strategy would, of course, need to be carefully examined in the context in which it is being deployed.  With respect to environmental review for mitigation infrastructure, for example, delaying infrastructure deployment could negatively impact justice by exacerbating climate change and its impacts on the most vulnerable; care would also need to be taken not to drive green investment away from environmental justice communities, resulting in a loss of economic opportunity.  And it should be conceded that precommitment strategies can’t satisfy all justice values; we should continue to push for more.  But perhaps we should also hedge our bets by locking in a modicum of rough justice.

- Katrina Fischer Kuh, Haub Distinguished Professor of Environmental Law, Elisabeth Haub School of Law at Pace University.

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