Fri, Mar 19, 2021 page9

• Climate policies need constitutional foundation

  Public engagement can drive the societal embrace of climate adaptation, representing a significant constitutional moment

  • By Giulio Boccaletti
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  In January, the Netherlands hosted the digital Climate Adaptation Summit, where representatives of governments around the world discussed post-COVID-19 recovery plans. To take advantage of remarkably cheap public finance, many emphasized state-directed investments in green infrastructure to promote climate adaptation and stimulate the economy.

  Given the increasing evidence that unavoidable shifts in the climate system are already underway, this focus on adaptation should be applauded.

  However, the constitutional implications of increased state interventionism should not be underestimated. Any time a state promises to wield power on a society-wide scale — in this case, to climate-proof its entire economy — the sources and scope of its legitimacy will be hotly debated.

  In many countries’ courts, they already are. In 2015, Urgenda, a non-governmental organization, sued the Dutch government on the grounds that it had failed to protect the public from the heightened risk that climate change poses to low-lying countries. The implication was that a failure to meet national emissions-reduction targets constitutes evidence of state negligence.

  In 2019, the Dutch Supreme Court in The Hague agreed. Ruling in Urgenda’s favor, it compelled the state to pursue larger emissions cuts.

  Although the Urgenda case was initially framed as an application of tort law, it ultimately hinged on the obligations of the Dutch government under the European Convention on Human Rights. Because the focus shifted to risks experienced by the entire population, it became a constitutional issue.

  The supreme court’s decision cast the effects of climate change (projected by the science) as an infringement on human rights, and thus ruled that the state has a duty to act. Presumably, the same duty that applies to climate mitigation (emissions cuts) will also apply to investments in adaptation.

  Nonetheless, systematic climate adaptation implies a transformation of the physical landscape on a scale that is certain to provoke pushback.

  In the early 20th century, the human population tripled with the shift from rural, agricultural societies to urban consumer economies.

  As a result, expectations changed. A wealthier, enfranchised population could no longer tolerate risks (namely, floods and droughts) that previously had been an accepted part of life.

  When the Great Depression hit, governments responded with infrastructure-led modernization programs designed to control an unruly environment, and prevent it from threatening economic growth and stability.

  The proliferation of dams, embankments and canals amounted to an extraordinary display of sovereignty. The essence of this technocratic crusade against economic insecurity was similar to what some would like to see in states’ responses to climate change today.

  In the US, Tennessee Valley Authority (TVA) Corp became the archetype of state-led modernization. Wielding extraordinary executive power as a federally-owned company, TVA could expropriate land in the name of the public interest and command substantial federal resources.

  Yet, despite its success in transforming one of the poorest regions of the US, it faced such strong opposition from those who saw it as federal government overreach that no project of its kind has been replicated in the US.

  Indeed, the response to TVA sowed the seeds of an anti-infrastructure, anti-dam movement that swept the world in the second half of the century.

  Without a shared understanding of where individual rights end and collective responsibility begins, any systematic transformation of the landscape will be an uphill battle, whatever the intent.

  Climate-adaption projects cannot become a staple of public policy if they are merely technocratic in nature. Rather, they must embody a new contract between the state and the public. There must be a constitutional arrangement that defines the risks a society is willing to endure and sets a threshold for taking collective action against intolerable threats.

  Because modern constitutionalism developed alongside the smallpox and yellow fever crises, public health offers a helpful analogy for how such arrangements arise.

  In the 1905 Jacobson v Massachusetts decision, the US Supreme Court ruled that a community’s right to protect itself against a deadly epidemic allowed it to take action against individuals who refused to be vaccinated against smallpox — including by legislating compulsory inoculation.

  In most democracies since then, a century of judicial review has produced a large body of constitutional doctrines conferring legitimacy on state policies to manage public health.

  These prerogatives have been on full display during the COVID-19 pandemic: Government-ordered lockdowns have curtailed individual freedoms in ways that rarely happen without trial.

  Citizens have largely accepted these interventions not just because of past jurisprudence, but because of all the social and political history that the legal system has metabolized to get to where it is today.

  We are the beneficiaries of decades of debate on the importance of public health; of large bodies of epidemiological data, which have won the confidence of courts and government officials; and of huge investments in a complex web of institutions — government agencies, universities, regulators — which have over time built trust.

  These and other factors have helped citizens converge on a set of principles making public health a top collective priority.

  Humanity has reached the critical juncture where climate change is acquiring normative value. The evidence justifying concerted state action continues to grow, but while climate adaptation is as urgent and salient an imperative as public health, it has yet to gain the same level of broad-based acceptance.

  For climate policy to become more than a technocratic project, governments will need to invest not just in infrastructure and land-use changes, but also in intellectual capital, regulatory institutions, research and education.

  Now is the time to drive public engagement in the debates that will define the boundaries between individual rights and collective responsibility in the era of climate change. Insofar as limits on the exercise of state power are the bedrock of modern constitutionalism, the societal embrace of climate adaptation represents a significant constitutional moment.

  Giulio Boccaletti is an honorary research associate at the University of Oxford.

  Copyright: Project Syndicate
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