Of course, that's not true, but there is a legal style of thought - often framing policy issues requiring the use of scarce resources (and hence unavoidable trade-offs in terms of the uses of those resources) as “rights” that trump any consideration of trade-offs - that I really object to. This objection has been highlighted recently in the area of climate policy. Climate change is, I believe, the number one policy issue facing human society over the next 50 years, so you might have thought that I would welcome any means by which to get action on this issue...
Legal action against fossil fuel companies, such as the RWE case in Germany, represent a shift toward courts becoming arbiters of climate policy. On the surface, the case for litigation against carbon majors, as clearly articulated in recent research by Callahan and Mankin, seems compelling. They argue that companies like Chevron have caused trillions in economic losses due to their emissions, and that attribution science can directly link specific emitters to particular damages.
And the science is fine - we can (in a probabilistic sense anyway) attribute damages to a given quantity of emissions. However, I would argue that fining specific companies for their share of given damages that can be attributed to climate change is highly problematic.
Let’s entirely accept the premise that fossil fuels caused damages with accurately calculated valuations. Should a given fossil fuel supplier be charged this amount, years after the fuels they supplied were burnt? These damages were the product of commercial activities, involving both suppliers and consumers, that were perfectly legal at the time. Why, then, are only the suppliers being held accountable? Should consumers bear responsibility too? And even if we decide to target only suppliers for liability, most profits made from fossil fuel sales have already been distributed to shareholders, possibly decades ago. The current shareholders, some of whom might be activist shareholders using their positions to advocate for more responsible climate policies, are hardly the responsible parties.
Some argue that these companies bear responsibility because they knowingly concealed information about the damages of climate change. But a company itself cannot "hide" information: individual people within that company did. If those actions were illegal, the responsible individuals should face prosecution. If they weren’t illegal at the time, perhaps laws should be revised rather than retrospectively holding entire corporations responsible for actions driven by a few individuals.
Furthermore, the use of courts to essentially dictate climate policy raises crucial issues of democratic legitimacy. Climate change, with its far-reaching impacts and trade-offs, demands collective societal decisions. These decisions should ideally come through our political processes, where priorities like poverty alleviation, healthcare, education, and, climate action, can be openly debated and democratically weighed.
Legal shortcuts risk circumventing these necessary debates. Courts operate within a framework defined by legal precedent and statutory interpretation, not democratic consensus. When a judge determines that "the law" mandates a society's resources be committed to climate mitigation or compensation, it bypasses a vital step: collective agreement and prioritisation.
Take poverty alleviation as a competing priority. Arguably, the resources needed to tackle climate change might be seen as more urgently required elsewhere, at least temporarily. Advocates for judicial intervention tend to gloss over these difficult trade-offs, saying that those damaged by climate change have a right to these resources such that potential trade-offs do not need to be considered. However, rights are easily created, and without considering the overall budget constraint at the aggregate level, we can easily legally engineer a situation in which each of 11 people are all entitled to 10% of society’s resources. But just because we can legally do it, doesn’t mean we can mathematically do it.
The imperatives of “rights” is a kind of moral absolutism, and this rarely persuades. Instead, it risks fuelling backlash among those who feel their voices aren't heard, potentially undermining broad societal support necessary for sustained climate action. Courts typically aren't accountable to the public in the same way elected representatives are. Judges don't stand for re-election on the strength of their climate policies; they aren’t directly answerable to voters angry about rising taxes or restricted services due to diverted resources. Entrusting climate decisions to the judiciary thus places them beyond the reach of democratic debate and correction.
Burdening systems with statutory responsibilities i.e. giving the service users of a system legal rights, is fine in the context of an ever-growing resources environment. But in the context of limited resources, and even declining resource availability, rights and responsibilities can engender system fragility and collapse. In the context of climate change, when we will see real resource constraints, we need robust and capable systems of government and decision making, with high levels of state capacity. Loading legal rights and statutory responsibilities onto such systems is entirely the wrong course of action.
So, while Callahan and Mankin make an airtight scientific case for attributing specific climate harms to specific quantities of emissions that can be mapped to the Scope 3 emissions of specific corporate entities, the leap from science to policy via litigation and rights-based frameworks is troubling. It represents a shortcut that seems attractive precisely because of political gridlock and inertia. Yet shortcuts in politics often lead to dead ends.
Climate policy achieved via courtroom victories rather than through collective societal consensus-building might gain short-term wins but could lose long-term legitimacy and support. And with the election of Paris Accord exiting Trump in the US, the rise of the Net Zero denying Reform in the UK, and its equivalents in France, Germany etc, the loss of democratic legitimacy for climate action seems frighteningly close at this juncture.
