Avoiding Performative Climate Justice

Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. AVOIDING PERFORMATIVE CLIMATE JUSTICE by Katrina Fischer Kuh Katrina Fischer Kuh is the Haub Distinguished Professor of Environmental Law at Pace University Elisabeth Haub School of Law. SUMMAR Y Today's climate impacts and those on the horizon increasingly infuse mitigation and adaptation efforts with urgency, causing policymakers to contemplate or issue formal declarations of a climate emergency and to streamline review processes to aid rapid development of mitigation and adaptation infrastructure and technology. Yet, this urgency and need have the potential to create injustice and sideline or overwhelm efforts to reduce existing injustice. The key question in the climate justice context is whether the commitment to justice today, and the provisions to protect justice that are adopted to advance that commitment, can and will endure as the pressures of high-level warming intensify. This Article, excerpted from Adapting to High-Level Warming: Equity, Governance, and Law (ELI Press forthcoming 2024), proposes a precommitments strategy to help make a present-day commitment to climate justice more enduring. Open-eyed assessment of the potential for and on-the-ground realities of high-level warming (signiicantly beyond 2 degrees Celsius (2°C)) supports implementation of extraordinary and immediate mitigation and adaptation measures and portends that even with such measures, climate impacts will strain adaptive capacity to the breaking point and beyond, resulting in signiicant societal dislocation and loss and damage. In the context of adaptation to high-level warming, societies will transition from a steady state punctuated by the need to manage periodic emergencies to a near-constant state of managing extreme conditions. Today’s climate impacts and those on the horizon increasingly infuse mitigation and adaptation eforts with urgency, causing policymakers to contemplate or issue formal declarations of a climate emergency and to streamline review processes to aid rapid deployment of mitigation and adaptation infrastructure and technology. In both contexts—the implementation of extraordinary mitigation measures and adaptation to high-level warming—urgency and need have the potential to create injustice and sideline or overwhelm eforts to reduce existing injustice. 1 Author’s Note: With many thanks to readers and editors, including Cinnamon Carlarne, Keith Hirokawa, Frederick Mauhs, Gabrielle Mickel, Michele Okoh, and Clifford Villa. test, it is challenging to precisely deine justice and injustice in the context of climate change. Broadly, “climate justice fundamentally is about paying attention to how climate change impacts people diferently, unevenly, and disproportionately, as well as redressing the resultant injustices in fair and equitable ways.” Farhana Sultana, Critical Climate Justice , 188 Geogr. J. 118 (2022). Climate change, standing alone, is a profound injustice. Indigenous peoples are being subjected to the unintended, but catastrophic consequences of a colonial system of extraction and capitalism that has already deeply harmed them. In thinking about justice and high-level warming, this Article uses the term “justice” broadly with particular concern for how high-level warming and our responses to it may exacerbate existing injustice— produced by colonization; racial, gender, and other forms of discrimination; and economic inequality—and/or complicate eforts to remedy it. 1. As other chapters in this efort, including those authored by Cinnamon Carlarne and Keith Hirokawa, Robin Kundis Craig, and Cliford Villa at- Emergency as the contextual backdrop for law and policymaking—whether experienced, formally declared, or simply perceived and anticipated—can create or exacerbate injustice. High-level warming will produce successive, deepening domestic climate emergencies (resulting in internal displacement, food insecurity, and political instability), triggering scarcity and struggle that could sap the motivation and capacity to attend to justice. he best intentions—for example, to manage internal migration to support successful relocation by low-income communities, avoid climate gentriication, and prevent receiving locations from adopting discriminatory policies, tricky tasks in the best of times—may yield to the urgency of other, more pressing adaptation needs. Justice may be treated, as described aptly by Cliford Villa in “Environmental Justice Beyond 2°C,” as a “luxury that requires letting go.” At least for now, exhortations to climate justice abound. We are in a moment of intense climate policymaking, and 54 ELR 10230 ENVIRONMENTAL LAW REPORTER 3-2024 Copyright © 2024 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120. justice is often central in these discussions and the laws and policies they produce. 2 But today’s concern for justice and the adoption of justice provisions may not be suicient. he key question is whether the commitment to justice today, and the provisions to protect justice that are adopted to advance that commitment, can and will endure as the pressures of high-level warming intensify. Without staying power, justice measures in climate policy may prove to be performative gestures that make us feel better today but do little to substantively advance justice tomorrow—and in particular under high-level warming. Incorporating precommitments to rough justice into mitigation and adaptation law, triggered and enforceable through automatic processes and made in the relative cool of now as opposed to the heat of later, could help to make a present-day commitment to climate justice more enduring (stickier). Key aspects of a precommitment might include that it should be: (1) sticky (not easily reversed—set out in statute as opposed to an executive order, for example); (2) automatic (trigger a clear and measurable outcome or duty that is not dependent on the exercise of discretion); and (3) early (the commitment should be made prior to the circumstance(s) in which it would be implemented). Such “precommitment strategies” 3 are unlikely to achieve fully just outcomes and should be accompanied by myriad other mechanisms for advancing justice, but they could help to prevent least-just outcomes. he precommitment strategy discussed here seeks to maximize the efectiveness of eforts to advance justice in climate change policy, while also acknowledging that they are incremental and, standing alone, likely insuicient. Climate change law, the focus here, is an area of rapid and signiicant lawmaking where the nexus to climate change is obvious and there are serious eforts being made to respect and advance climate justice in new laws. Ultimately, however, the prerogative to gird our laws and policies for the uphill climb for justice under high-level warming extends far more broadly and will need to incorporate broader social policy, such as entitlement reform. 4 Another approach to limit injustice in the turmoil to come is to strive to enter it with the least amount of carryover injustice, or injustice that we produced and tolerated even in times of relative stability and relative plenty, by focusing on achieving what Robin Kundis Craig refers to as “day-to-day” equity. 5 his suggests the promise of 2. E.g. , Alexandria E. Dolezal, Power to the People: Distributing the Beneits of a Clean Energy Transition hrough Equitable Policy, Legislation, and Energy Justice Initiatives , 106 Minn. L. Rev. 2441 (2022). 3. Richard Lazarus uses the term precommitment strategies to describe asymmetric institutional design features that he recommends incorporating into federal climate change legislation to prevent the repeal or weakening of mitigation commitments. Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future , 40 ELR 10749 (Aug. 2010). his Article explores the basic concept of a precommitment strategy—making policy commitments harder to overlook or undo in the future—in the context of climate change justice, including at the subnational level. 4. Andrew Hammond, On Fires, Floods, and Federalism , 111 Cal. L. Rev. 1067 (2023) (discussing climate adaptation of public beneit programs). 5. Robin Kundis Craig, Survival Equity and Climate Change Triage: How to Decide Who Lives and Who Dies , in Adapting to High-Level Warming: approaching climate change through a social justice lens in the style of the Green New Deal, and also the need for more radical social and legal reforms. he justice provisions embodied in climate change policy and examined in this Article are incremental in that they attempt to advance justice within traditional legal and policy frameworks. It may be that much stronger medicine is needed to meaningfully advance justice, particularly in the context of high-level warming, and that these incremental approaches have an opportunity cost in that they “forestall[ ] . . . serious consideration” of necessary but deeper change. 6 However, if the justice aspects of current climate policy—incremental though they be—are also inefective, that would compound the harm. he Article irst sketches the contours of precommitment strategies by identifying examples of precommitment strategies in existing climate change law, and contrasting them with other approaches for advancing justice that are not sticky, automatic, and early, and thus would not be considered precommitments. It then contemplates whether and why sticky, automatic, and early precommitments to justice may be an important strategy to advance justice goals in anticipation of and at high levels of warming. It concludes by analyzing the use of precommitments to justice in the context of the expedited siting and construction of renewable energy infrastructure. I. What Is a Precommitment to Justice? Many...