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This chapter considers the role of the courts in addressing recent efforts to protect wildlife, the second category of the voiceless. It examines several case studies in the United States and in foreign domestic jurisdictions in which the Nonhuman Rights Project (NhRP) has filed habeas corpus petitions seeking to establish rights for primates and higher mammals to be free from unlawful confinement and abuse. The chapter underscores how persistent and creative efforts to use the common law can be a tool to raise awareness of important changes that need to occur at the constitutional and legislative levels. Animal protection organizations such as NhRP, People for the Ethical Treatment of Animals (PETA), and the Animal Legal Defense Fund (ALDF) have filed cases addressing what qualities wildlife must possess to be entitled to stewardship and guardianship protection in our legal system. If corporations, ships, and natural resources have legal personhood protections, it follows that at least some, if not all, forms of wildlife should enjoy similar protections. Animals are treated as property under US law and in most foreign domestic jurisdictions, and historically have been used as a means to an end to fulfill human needs for food, companionship, and entertainment. This property-based model facilitates exploitation and interferes with the implementation of the legal protections necessary to help ensure ecosystem integrity and protection of wildlife populations in the face of climate change impacts.
Chapter 6 proposes a framework to enhance protection of the voiceless in the Anthropocene era. It proposes a substantive standard based on sustainable development, catalyzed by the climate change crisis, and accompanying procedural mechanisms to enforce that standard. Enforcement of the sustainable development standard can be achieved through plaintiffs asserting a procedural and/or informational injury from a government’s breach of duties toward future generations, wildlife, and/or natural resources. These protections can be patterned after US federal environmental laws like the National Environmental Policy Act (NEPA), which reflects ecocentric thinking, whereby an agency’s failure to undertake procedures or provide information designed to fulfill stewardship duties toward the voiceless community would enable humans to sue on behalf of those protected entities to compel the performance of the duty.
Future generations, wildlife, and natural resources - collectively referred to as 'the voiceless' in this work - are the most vulnerable and least equipped populations to protect themselves from the impacts of global climate change. While domestic and international law protections are beginning to recognize rights and responsibilities that apply to the voiceless community, these legal developments have yet to be pursued in a collective manner and have not been considered together in the context of climate change and climate justice. In Climate Change and the Voiceless, Randall S. Abate identifies the common vulnerabilities of the voiceless in the Anthropocene era and demonstrates how the law, by incorporating principles of sustainable development, can evolve to protect their interests more effectively. This work should be read by anyone interested in how the law can be employed to mitigate the effects of climate change on those who stand to lose the most.
Creative climate change litigation has raised awareness of the human rights dimensions of climate change impacts and highlighted the deficiencies of the existing domestic and international regulatory regimes to address climate change. The Inuit petition, submitted to the Inter-American Commission on Human Rights (IACHR) in 2005, marked the beginning of this movement to hold public and private actors accountable for their contributions to climate change impacts and their failure to act (or at least to act adequately) to address the problem. A line of public nuisance cases was pending in US courts while the Inuit awaited the decision on its petition. This line of cases initially sought injunctive relief for climate change mitigation, but subsequently sought damages from private companies for their greenhouse gas emissions. The Kivalina case sparked the climate justice movement in this regard, where a small and remote Native Alaskan community sought damages under a public nuisance theory for the cost of relocation as a result of severe coastal erosion that caused its homeland to become imminently uninhabitable.
Chapter 5 shifts the focus to natural resources, the third and final category of the voiceless, and examines the legal initiatives that have sought to protect the rights of nature. Natural resources have been the subject of robust protection in constitutional provisions and legislative enactments in the United States and many other countries. The rights of nature movement has exploded within the past decade and has started to gain traction as a possible tool to combat climate change impacts. One prominent example is the recent effort in Australia that seeks to confer legal personhood to the Great Barrier Reef to help address the impacts of ocean acidification that are decimating this national and international treasure.
Building on Chapter 2’s focus on the use of the courts to advance the foundations of the climate justice movement in the United States and at the foreign domestic and international levels, Chapter 3 discusses the “future generations” component of the voiceless community and how the common law has been a valuable tool to protect it on environmental matters. The stewardship-oriented focus on the protection of future generations began with protection of environmental resources generally and then adjusted its focus to the protection of the climate system in the Anthropocene era through stewardship-focused and rights-based theories.
The severity of the climate change crisis is caused exclusively by human action and inaction. First, for the past several decades, humans have been responsible for 100 percent of the greenhouse gases (GHGs) in the atmosphere that contribute to climate change.1 Second, the failure of domestic and international climate change mitigation and adaptation efforts has exacerbated this crisis instead of managing it. This human-caused crisis cannot be addressed effectively by a human-centered, development-focused regulatory framework.