Climate change combat needs to prefer imaginative over evidence-based legal approach

Global institutions have raised alarming concerns regarding the Earth's rising temperature. In these dire times, legal recourse to combat climate change requires imaginative thinking rather than conforming to cumbersome procedures of law.

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SHOULD lawyers, judges and lawmakers decide or form their opinion on imagination?

Out-of-box thinking defying the status quo is not unknown to the legal community, however, they are constrained by reasoning and logic as part of due process and the rule of law.

But in the present fast-moving world, particularly where movement is driven by technology, the imagination as a sixth sense is necessary to catch up with threats that loom large.

It is apt to recall what Albert Einstein said, "Logic will get you from A to B. Imagination will take you everywhere". Hence, the legal response to the threatened climate change and its likely impact on the environment needs an imaginative approach.

Place of imagination in epistemology

Epistemology is a branch of philosophy that recognises justified true belief as knowledge. Among sources of knowledge, perception has more authenticity.

Pure reasoning based on logic is expected to supplement perception in refining ideas, concepts, and principles. Imagination, therefore, is often employed in the hunt for knowledge.

Also read: India's challenges towards achieving net-zero goals

Counterfactual reasoning is often an imaginative exercise. Joshua Meyers sums up by saying, "Epistemic uses of the imagination are a sui generis (unique) form of reasoning"

Role of imagination in regulation and adjudication

Lawmakers act imaginatively rather than on a strict evidence-based approach while enacting legislations and framing policies.

This is more so in a fast-moving world driven by technological strides. Parliamentarians do not hold an inquiry before banning a certain activity that is harmful to life, health or the environment.

Of course, they do consider the studies and reports and listen to the people before deciding to act. However, they are known to capture imaginatively the danger posed by certain activities and acts.

Philosopher Hans Jonas said that technology has changed the range of adverse impacts and, therefore, it is necessary to change the ethics and accept the responsibility to consider distant effects.

Unlike legislators, who have the freedom to act on imagination, regulators and adjudicators act as fact-finders on cause and effectively employ legal reasoning that involves reasoning based on logic and evidence understood from those who know by perception or from expertise.

Also read: Climate change and air pollution: Two sides of the same coin

However, in some cases where evidence is not forthcoming, particularly about issues touching potential dangers, regulators and judges feel severely constrained.

Environmental protection and climate change

The protection of the environment from harmful activities is the greatest challenge. It is defined as "the prevention of unwanted changes to ecosystems and their constituent parts."

Even though the survival of society depends on the development of natural resources such as water, land, minerals and forests for the benefit of mankind, the obligation to protect the ecosystem is equally important. The resulting combination of the right to development and the duty to protect the economy is known as sustainable development.

An imminent threat to the environment at present is undoubtedly from the likely climate change.

How credible is the threat of climate change? Scientists have differing views. But, is it necessary for policymakers to ask this question?

The world cannot afford to wait and see until climate change occurs. Because, when it occurs, it is irreversible. The world is, therefore, expected to act and avert the threat. Hence, imagination and imaginative thinking are necessary in designing the legal combat against climate change.

The raison d'etre (fundamental reason) for climate change is the emission of gases such as oxides of carbon, nitrogen and sulphur.

China, the United States of America and India allegedly emit 10.4 billion tonnes, 5.0 billion tonnes and 2.5 billion tonnes of carbon gases respectively, constituting about 50 percent of the annual carbon emission of the planet.

Also read: Unpacking the second IPCC report: pathways to catching the narrow window of opportunity for climate action

However, as regards India, it has promised to cut carbon emissions by 1 billion tonnes in total which is about 3.5 percent as part of its Intended Nationally Determined Contributions under the 2015 Paris Climate Accord.

The global temperature will rise to catastrophic levels if no steps are taken to reduce carbon emissions.

The past six years have been the warmest years on record since 1880, with 2016, 2019 and 2020 being the top three years warm years, according to the World Meteorological Organisation (WMO).

The year 2020 saw 1.2° Celsius temperature rise above the pre-industrial era (1880) level. The WMO predicts a 20 percent probability that temperatures will temporarily exceed 1.5° Celsius as early as 2024.

On October 13 2023, writing in the New York Times, Zeke Hausfather warned that climate change as of September 2023 has occurred and the temperature has risen approximately by 1.3° Celsius.

At present, a general impression is that the world has done something to see that the expected temperature does not rise above 2° Celsius over the pre-industrial level. However, the world has to act more innovatively to stop the rise above 1.5° Celsius.

The world needs to halve emissions over the next decade and reach net zero by 2050 if we are to limit global temperature rises to 1.5° Celsius.

At the 2021 United Nations Climate Change Conference (COP26) held in Glasgow, nations committed to submitting Nationally Determined Contributions at the end of every five years.

The world is soon meeting in Dubai for COP28 after an unimpressive meeting in Egypt for COP27.

Legal imagination to avert climate change

Normally, self-regulation may be advisable in the international arena, but in the case of climate change, the world community must have a self-imposed coercive approach by entering into a binding treaty sooner or later.

Also read: India will fail to meet its climate change goals within its current forest governance framework

Prof. Liz Fisher emphatically says, "Climate change requires the evolution of legal imagination because a problem like it has not figured in legal thinking."

At the international level, the protection of the environment is the State's responsibility under the customary rules of international law that emerged and developed after the Stockholm Declaration in 1972 and the Rio Declaration in 1992.

However, the subject matter of regulation, namely, damage to the environment, is a complex scientific phenomenon. The cause and effect of future events is generally speculative justifying an imaginative approach.

Regulation of the environment is founded on several principles that the world community has boldly and imaginatively adopted. These include common concern, no harm principle, common and differentiated responsibilities, polluter pays principle, environment impact assessment, precautionary principle and peaceful resolution.

Dissatisfied by the insufficiency of regulation, people are increasingly turning to judges to combat climate change. The United Nations Environment Programme, in its 2023 report, says that 2,180 climate-related cases have been filed in 65 jurisdictions.

As discussed earlier, judges cannot easily depart from legal reasoning and freely adopt legal imagination.

Shyam Divan says, "The reasons for the judicial reticence are grounded in the rule of law and separation of powers." However, some change and flexibility is taking place. 

Also read: Dignity in the times of climate change

Prof. Fisher cites Justice Preston's analysis and the Hague's District Court's judgment on the imaginative approaches adopted by judges on climate change issues.

A real problem faced by the judges is the lack of scientific evidence. Even though the precautionary principle is the stated policy, judges have yet to lap it up.

The precautionary rule implies the use of imagination by fact finders while applying the rule.

The world community met in Stockholm in 1972 and after three decades in Rio in 1992. At Rio, they took note of the shortcomings of science in predicting the damage and risks to the environment from the unabated development activities after globalisation.

The States decided to act, albeit imaginatively, in protecting the environment. The rule of precautionary principle was declared in Principle 15 stating that, "In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities.

"Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation." The precautionary principle or approach has become the underlying rationale in a large number of treaties.

Note: The article is an edited version of the original paper read on November 26, 2023 at the thirty-sixth Annual LAWASIA conference in Bengaluru, India.