Just who is responsible for climate change? Big Oil? SUV drivers? Everyone? Are some people more responsible than others? I try here to imagine what could the legal reasoning be if a special tribunal were ever set up to judge those responsible for climate change.
Most of the intellectual debate on the issue assigns responsibility to entire groups, rather than individuals. In his Laudato Si encyclical , Pope Francis blames governments, corporation and humans in general for climate change (even if he makes clear references to richer countries, especially the United States). Others tried to compute responsibility at the country level. In a widely cited paper , Prof. Dale Jamieson uses car ownership as a proxy to rank countries, for instance. Greenpeace went further still and assigned a measurable amount of responsibility to different energy companies , but not to consumers. Chancel and Piketty go farthest and estimate gas emissions at the individual level, but take revenue as a proxy, not actual actions.
Collective responsibility is hardly compatible with a liberalism. I argue here that we can pin down each individual’s responsibility for climate change, at least in part. And that such an approach should not be pursued.
Responsibility implies agency. One cannot be held responsible for something that is not under one’s control, such as the carbon dioxide emitted while breathing. In the case of greenhouse gases, the nature of the market for fossil fuels is such that any amount of oil that is not consumed by person A will bring prices down until person B buys and burns it, provided that the price remains above the cost of extraction. The nature of climate change is such that the location where the resource is burned does not matter. The only way to reduce global fossil fuel consumption is to make fossil fuels uneconomical, either through the development of cheaper energy sources (wind, solar, nuclear etc.), through a global reduction of energy consumption (using stronger emission limits) or through a global carbon tax. None of these imply an individual change in behavior.
In other words, Assaf’s decision to take his bike instead of a motorized vehicle will only let Brigitte fill the tank of her car more cheaply. That an outcome is ineluctable does not imply that the people responsible for said outcome matter less. Knowing that an outcome must occur does not free oneself from all responsibility in the process leading to its realization. In a crowd chanting illegal slogans, for instance, every person chanting is committing an illegal act and every person who doesn’t isn’t, even if the chanting of a single person makes absolutely no difference.
What we can measure
Agency implies a knowledge of one’s actions. One cannot be held responsible for greenhouse gases emitted outside of one’s control. Consumers and companies have no way of precisely knowing how many tons of oil were burnt in the manufacturing of a car, a kilogram of beef or the construction of a house. The idea that purchases are a moral act, which Pope Francis puts forwards in his encyclical, when considering climate change, is wrong. There is no way for a consumer in Germany to know if the cultivation of a rose brought by lorry from the Netherlands required more fossil fuels than the cultivation of a similar rose brought by plane from Kenya.
The only actions that can be imputed to a person are the ones she directly takes. These include driving a combustion-engine car, heating using fossil or bio-fuels and flying by plane . These actions are the only one that have a direct link to greenhouse gas emissions and that are directly caused by a person. Other energy-intensive actions, such as taking an electric train or heating or cooling with electrical power cannot be said to be linked directly with emissions of greenhouse gases as consumers do not know the precise source of the energy used (fossil fuel or not).
This list of actions that can be measured is flawed in many ways. A person burning one ton of oil in a car that was locally-produced in the 1980’s probably does less harm to the environment than a person that burns 900kg of oil in two different new, imported cars. However, this is the only direct link between behavior and greenhouse gases emissions that can be measured.
The legal framework does help - a bit
Energy companies have known about greenhouse gases’ impact on temperature since the early 1980’s . Consumers can be said to have known since the UN-organized, 1992 global conference on the environment held in Rio de Janiero, which widely relayed the link between rising temperatures and greenhouse gases emissions. Although gas stations do not display warnings such as “fossil fuels harm the environment”, consumers received plenty of information showing the link between emission of carbon dioxide and a rise in temperature. In some countries, climate change is even part of the basic school curriculum.
Legislation exists that could be used to prosecute climate-changing behavior. Laws protecting endangered species, for instance, prohibit the destruction of wildlife habitat . More generally, the concept of environmental crime exists in most countries. In France, the constitution prohibits damage to the environment . In the European Union, Directive 99 of 2008 states in its third article that “the emission of material which causes substantial damage to animals or plants” is a criminal offense.
Companies and consumers know that they contribute to increasing temperature by burning fossil fuels, increasing temperatures destroy the habitat of animals and plants, ergo companies and consumers can be charged with environmental crime.
Such an argument would never be used in court, but it shows that we can apprehend responsibility and climate change in concrete terms. It would be impossible to associate climate change with destructions or deaths (at least until the first inhabited island is submerged by rising oceans) as it is impossible to say with certainty that such or such event was directly caused by greenhouse gas emissions. It is also impossible to measure the damage done to future generations as long as the damage is not realized. Destruction of wildlife habitat, by contrast, is directly linked to greenhouse gases emissions, happens today and is measurable (in the reduction of wildlife population and species).
As far as courts are concerned, many more pieces of legislation regulate the levels of permitted greenhouse gas emissions. In other words, the government gives companies and consumers a license to flout environmental crime legislation. Prosecuting pollution with existing legislation, even in theory, proves impossible. (Companies could be charged with deception, as they played down the role of fossil fuel in climate change, but consumers could not.)
Why we should not seek prosecution
If a tribunal were ever set up to prosecute those responsible for climate change and decided to give priority to environmental crime legislation, it could theoretically indict anyone who directly emitted greenhouse gases after it was known that they caused temperatures to rise and after it was made a crime to destroy wildlife habitat. Prosecutors could count the tons of carbon dioxide emitted from driving, flying or heating for all those charged. It is technically possible: Driving and flying can be inferred from cell phone logs and heating can be obtained at the natural gas providers of each household.
However, if such an eco-tribunal were ever set up, its purpose would be primarily political. It would seek to mark a dramatic change from an era (now) when people could emit as much greenhouse gas as they wanted. Its purpose would not be to bring justice, but to signal that those in power would not tolerate practices that used to be normal. While justice might dictate to go after hundreds of millions who knowingly partook in rising temperatures, practical concerns will advise against it, were it only because the cost of such trials would be too high.
The Nuremberg trials show how such political acts work. Despite claims to the contrary, it clearly was a case of victor’s justice. War crimes committed by Allied forces were not investigated, and several of the countries who sent prosecutors to Nuremberg went on to apply killing techniques not out of place in 1942 Belarus is the months following the trial (especially the French at Madagascar). However, it showed to the population of the defeated countries that any return to previous norms would not be tolerated. It was not only the victors who chose to focus on symbolic trials. People who committed their lives to bringing Nazis to justice saw that casting too wide a net would be unproductive. New research shows that Fritz Bauer, famous for the Auschwitz and Eichmann trials, purposefully did not prosecute lower-ranking officials, even when he had all the material to do so .
Climate change was not created by oil industry tycoons. Many of the decisions that led to the current crisis would never have been enacted if they were not largely supported by the vast majority of the population. However, prosecuting behavior from consumers would be counter-productive. The responsibility for climate change, by far, lies with the companies that lied about the consequences of their products and with the politicians who refused to enact proper regulation.
- Read the text here
- In the 2009 article Climate Change, Responsibility, and Justice
- In this 2013 report
- See Carbon and Inequality, p.25.
- While it is technically possible to measure the amount of greenhouse gases emitted in the fabrication process of one product, I argue that it is impossible for consumers to access this information, absent a precise and reliable indication on each good. Some decisions might appear obvious enough (buying seasonal fruits at the farmer’s market vs. buying overseas fruits from the supermarket) but most, as measured in amounts of greenhouse gases involved, are not. Should I keep driving my old car or buy a new, more efficient one? Should I build a new, eco-friendly house or stay in my apartment? Should I buy from a shop or from an online retailer?
- It could be argued that the plane does take off whether or not a single person buys a ticket. But airlines have the capacity to reorganize routes every few months based on demand, which is measured by tickets bought. Travel by combustion-engine bus or diesel train could be added to the list but their emissions per passenger amount to a fraction of emissions from airplanes.
- As the recently released Exxon documents showed.
- See the 2002 Species At Risk Act of Canada, art. 68.
- In the 2004 Charter for the environment
- See (Heikle Aktenfunde zu Nazijäger Fritz Bauer)[http://www.spiegel.de/spiegel/vorab/heikle-aktenfunde-zu-nazijaeger-fritz-bauer-a-1059298.html] in Der Spiegel.