The world has reached an acute point in the “highway to climate hell”. Talks at Cop27 barely achieved anything, despite the fact that almost one-third of Pakistan’s territory was submerged during unprecedented flooding; record heat over the summer killed nearly 25,000 in Europe; and almost 200,000 people in a major US city have not had clean water for months.
It’s all too easy to feel overwhelmed and helpless in the face of such widespread catastrophe. But we as citizens can do something right now. There are many interesting and entirely workable legal ideas percolating around the world from some very thoughtful people. Together, alongside increased citizen activism, these ideas can begin to provide a coherent and comprehensive legal framework for all of us to help save the planet.
Here are five key legal steps that I believe could help fundamentally put the trajectory of our planet on more positive footing:
1) Make ecocide an international crime
Ecocide needs to be designated as the world’s fifth atrocity crime, with the same moral power and legal impact as genocide and crimes against humanity. It has been defined by an international panel of jurists led by Philippe Sands as “unlawful or wanton acts” with “knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”. In plain language, ecocide outlaws the deliberate destruction of the environment such that people die and ecosystems are destroyed. Most importantly, the law applies to private corporations and their executives in their personal capacities.
This is not theoretical. It expressly outlaws what many oil and mining companies have done repeatedly to vulnerable Indigenous and farming communities around the world. Ecocide is not just normal pollution; it is highly destructive and happens either with intent or extreme recklessness.
Ecocide would expose executives of fossil fuel companies to potential criminal liability for signing off on acts of pollution. And that personal exposure will significantly change the decision-making calculus of these executives in the planet’s favor.
2) Enact the fossil fuel non-proliferation treaty
Pushed by civil society and officially proposed weeks ago at the United Nations general assembly by the Pacific island nation of Vanuatu, the Fossil fuel non-proliferation treaty is a broad and legally enforceable proposal for phasing out our global dependence on fossil fuels. The treaty requires member states to halt all new investments in fossil fuels and to begin to phase out existing operations. This addresses one of the key failures of the Cop27 summit which never agreed on the need for an orderly plan to phase out the industry.
While the Paris agreement set voluntary guidelines for countries to take important steps to ease some of the worst impacts of the climate crisis, by and large there is no legal enforcement mechanism. This treaty is the first of its kind and would create another vitally important step toward a truly sustainable future.
3) End Slapp lawsuits and other legal retaliation
When all else fails, Slapp lawsuits (or Strategic Lawsuits Against Public Participation) have become the fossil fuel industry’s go-to move to silence environmental campaigners, drain resources from advocates and weaken the climate movement, which is the most essential component to forcing governments to phase out the industry.
These lawsuits are fundamentally attacks on free speech but they come in all sorts of disguises: defamation, nuisance, trespassing, even racketeering. They are particularly prevalent in the United States, where frivolous lawsuits brought by industry actors against groups like Greenpeace are designed to intimidate rather than litigate claims on the merits. The entire array of so-called criminal prosecutions of protesters at Standing Rock and Line 3 are essentially Slapp actions in service of the fossil fuel industry.
A report from EarthRights International shows that the fossil fuel industry has used these legal tactics against over 150 people and organizations in the past 10 years. Again, the world is lucky to have two main coalitions – one in the US and one in Europe – to call attention to and oppose this brutal tactic.
The solution is simple. Governments must enact what are called anti-Slapp laws that punish corporations that engage in this type of legal intimidation. These anti-Slapp laws, which exist in some US states such as California and have been proposed at the federal level and to the European Union, could and should lead to massive fines of fossil fuel companies and government agencies that resort to these abuses.
4) Protect the Amazon headwaters
A quiet legal revolution is being led by Indigenous peoples in the Amazon countries of Brazil, Ecuador, Venezuela and Peru. Called the Amazon Sacred Headwaters Initiative, these frontline Earth defenders have proposed a feasible plan to provide international legal protection to what might be the most important ecosystem on Earth. Essentially, this plan would prohibit any further fossil fuel development in the area that comprises the headwaters of the Amazon and contains the planet’s greatest concentration of biodiversity.
The initiative has already published an incredibly impressive bio-regional plan for 2030. It also has the benefit of being organized on the ground by the true stewards of the forest, including roughly 30 separate Indigenous nationalities under the banner of an organization founded in 1984 in Lima called Coica (Coordinator of Indigenous Organizations of the Amazon River Basin). The initiative is being pushed by the Pachamama Alliance, an organization which has been working with Indigenous peoples in the Amazon region since the 1990s.
5) Binding climate reparations
There was a lot of talk at the Cop27 summit about the need to compensate underresourced countries for damage caused by wealthy nations which are overwhelmingly responsible for the negative impacts of climate crisis, migration, economic damage and poverty. Global Witness, one of the more effective NGOs in the world in holding the fossil fuel sector accountable for its corruption, has compiled an excellent summary of the reparations issues. A small victory at Cop27 was that a “reparations” fund was agreed to in the final hour, although there was no real commitment to actually getting money into the fund.
The problem is simple: wealthier nations such as the United States and China have been playing possum by insisting on voluntary commitments under the guise of “climate finance” which essentially means a mixture of loans, debt relief and technology that would be purchased by the global south from for-profit companies in the north. This approach falls far short of the meaningful change needed in the time frame left before even more devastating irreversible damage sets in.
What is needed is a binding international treaty where each wealthy country pays a fixed amount proportionate to its GDP into a fund administered by a neutral party with actual representation from the small countries most affected.
To be clear, I am not arguing that these proposed changes alone will save the planet. But the right combination of legal changes happening quickly can catalyze progress. The legal changes can both reflect the increased power of citizens who are making them happen, while further enhancing citizen power to engage in climate activism more broadly. Having a clear framework to connect the dots and push for this package of legal changes will go a long way toward advancing us to a sustainable future.
Steven Donziger is a human rights lawyer and environmental justice advocate. He is also a Guardian US columnist