“Fossil Law” Stands in the Way of Climate Justice

It’s not just the Republicans — one of the biggest obstacles to serious climate action in the US comes from the dysfunctional and reactionary American legal system. That system must be confronted head-on.

Climate activists rally outside the Supreme Court, which is expected to curtail the federal government's ability to regulate greenhouse gas emissions in the coming weeks, February 28, 2022. (Leigh Vogel / Getty Images for NRDC)

In the coming weeks, the Supreme Court is expected to severely limit the ability of the federal government to regulate greenhouse gas emissions. Despite the near-total absence of serious US policy on climate change, twenty-six states and fossil fuel industry groups are arguing in West Virginia v. Environmental Protection Agency that President Barack Obama’s now defunct Clean Power Plan is an impermissible intrusion upon states’ rights and the functioning of the national energy economy. The case and its consequences are important for understanding how capital maintains its disastrous control over the fate of planet, and why the Left must squarely confront one of the key obstacles to climate justice: fossil law.

“Fossil law” refers to the rules, regulations, and principles that, alongside physical infrastructure, move carbon dioxide from the earth to the atmosphere. Fossil law grew up alongside global capitalism, and it compels the continued extraction and consumption of fossil fuels. It does this not only by limiting the reach of environmental regulations, blocking accountability for climate pollution, and transferring public resources to industry — it also criminalizes resistance to the fossil fuel system. To realize the climate justice goals that are central to any twenty-first-century socialist program, the Left must take aim at fossil law’s dominance and engage in a campaign of strategic climate legal activism.

Fossil law could be seen in action during the oral argument in West Virginia v. EPA, in which the Supreme Court is considering how much discretion the Environmental Protection Agency has to regulate greenhouse gas emissions under the Clean Air Act (a ruling is expected in June). Justice Brett Kavanaugh, questioning the agency’s authority to deal with “major questions” like the energy composition of the power grid, articulated the skepticism of the court’s far-right supermajority.

One thing we said [in a previous opinion curbing the EPA’s authority to regulate greenhouse gas emissions] is that Congress must speak clearly if it wishes to assign an agency decisions of vast economic and political significance. And the second thing we said is that the Court greets with a measure of skepticism when agencies claim to have found in a long-extant statute an unheralded power to regulate a significant portion of the American economy.

In other words: Any serious climate regulation will have broad economic effects. Interference with the market is inherently suspect. So absent a clear directive from Congress, the EPA can’t do much to reduce emissions from coal plants or to force a grid-wide shift to renewables.

Passing the buck to Congress is a bit rich, given the recent history of legislative action on climate. But the problem of climate regulation is broader than the intransigence of a corrupt legislature: it goes to the core of modern environmental law.

The bulk of what we consider environmental law today — think the Endangered Species Act and the Clean Water Act — stems from a flurry of legislation passed by Congress in the early 1970s. At the time, there was bipartisan, unanimous legislative support for improving air and water quality, protecting wildlife, and curtailing industry abuse. Republican Richard Nixon advocated for and signed laws like the National Environmental Policy Act, which was designed to “encourage productive and enjoyable harmony between man and his environment.” The Environmental Protection Agency began administering a new scheme of monitoring and regulation in 1970, and the federal government set itself ambitious goals like eliminating all pollution into navigable waters by 1985.

US environmental law has achieved many things: our air today contains much less lead and sulfur dioxide, and twice as many US waterways are swimmable or fishable as compared to the 1960s. Climate lawyers and legislators have battled admirably against the odds, bringing tort lawsuits against carbon majors and passing important warming limits at the state level.

Since 1990, however, Congress has approved no major environmental legislation. It’s never passed a major law on climate change. The Clean Air Act, the statute at issue in West Virginia v. EPA, makes no mention of global warming, and its tools — though adaptable — are fundamentally ill-suited to the diffuse and long-term nature of the greenhouse gas problem. On this point, the skepticism of judges like Kavanaugh is warranted: we need better laws.

But fossil law, as the fundamental legal structure of our approach to climate change, stands in the way. This is because, like the social phenomenon of global warming, it’s a by-product of explosive economic expansion since the industrial revolution, and it shares a basic code that lies at the root of the capitalist world system — property rights, individualism, and private enterprise.

Property rights protect harmful economic activity and the ownership of extraction technology and energy generation, and biases the legal system toward profits over the social good. Individualism shapes the rules of standing in court cases, barring access to justice for anyone who cannot prove direct, immediate harm (hard to show when it comes to climate change). And private enterprise enjoys the legal fiction of corporate personhood and open access to public lands and subsidies. Our eighteenth-century constitution makes no mention of protecting the natural world; in fact, our federal environmental laws are based on Congress’s authority to regulate interstate commerce. The power of this code is seen again and again in judicial dismissals of climate change cases. If the Supreme Court views even the EPA’s modest interventions as an illegitimate application of this currently existing environmental law, then in addition to pushing the law’s current limits, we also must radically update its ambition and scope.

How do we do this? As with any leftist theory worth its salt, a socialist program for climate justice law should look to answers already emerging from social struggle. While the details of any given campaign vary, a strategy of climate legal activism unites groups working inside and outside the courts. They combine grassroots resistance with ambitious legal challenges to private property rights, archaic rules of standing, and federal deference to polluting industries — and offer in their place a right to the protection of nature and to democratic control over economic planning.

For example, the battle over the Enbridge Line 3 pipeline in Ojibwe territory in the state of Minnesota has produced radical new ideas about how to adjudicate our use of the environment. Over the course of a decade, resistance by thousands of indigenous-led protesters culminated in direct action to stop the construction of the pipeline, which passes through sensitive wetlands and will lock in demand for tar-sands oil. This campaign was ultimately unsuccessful; the pipeline has been built. But the activists haven’t surrendered. In court — where they face charges like felony theft — some are arguing that their “illegal” interference with oil infrastructure was justified based on protection of wild rice, a plant central to Ojibwe culture and at risk from pipeline spills. These activist defendants claim that wild rice enjoys legal rights of its own, based on treaties between the federal government and the White Earth Band’s recognition of those rights in 2018. A related lawsuit challenging government approval of the pipeline was based on the same premise.

A leftist climate legal strategy can also look to the rest of the world for strategies, especially at a time when the US legal system is fossil law’s foremost bastion. In 2008, Ecuador became the first country to recognize the rights of nature in its constitution, an experiment rooted in indigenous and Afro-Ecuadorian social movements; a similar process has been underway in Bolivia since 2012. Late last year, Ecuador’s Constitutional Court prevented the government from leasing mining rights in the Los Cedros protected forest, finding that such concessions would violate the rights of the reserve’s biodiverse ecosystem.

Of course, these efforts are not without their limitations and contradictions: the Ecuadorian and Bolivian environmental regimes, for example, have drawn criticism for violations of indigenous sovereignty, and the Rights of Nature movement has yet to prove its practical efficacy or to resolve questions about its reliance on a rights-based theory of change. But the unsettled nature of the project is no cause for abandoning the field. There is a rich tradition of socialist legal theory and practice. The key for leftists is to avoid the twin temptations of legal liberalism (according to which the law leads the way to justice) and dogmatic anti-legalism (which rejects all legal advocacy as accommodationist).

Fighting inside and outside judicial institutions — aggressively arguing for new rights and entitlements in court and directly confronting the fossil fuel industry in the streets — is our best chance to overturn fossil law. And it can be part of a larger effort to challenge the legitimacy of the US legal system in light of the Supreme Court’s increasingly aggressive attacks on democracy, economic justice, and reproductive rights. Break the law, remake the law, and take the law back — only then can we draft the future that we deserve.