Thursday, March 2, 2023 (All day) to Friday, March 3, 2023 (All day)
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Location: 
Jackman Law Building, 78 Queen's Park or join virtually via Zoom

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Conference fee: $0.00 - $103.95

Law in a Changing World the Climate Crisis

How is climate change affecting the law, and the role of law in society? What do we do about it?

Climate change is not only for experts to grapple with, but for all members of society, at all levels. The University of Toronto Faculty of Law’s conference on March 2 & 3 takes this proposition seriously. It aims to broaden the legal and policy discussions and explore how climate change is changing what we do – and what we need to do – as lawyers and legal educators.

The here-and-now of climate change has implications for virtually all areas of law, as well as legal institutions and lawyers. It requires nothing less than rethinking who, what and how law regulates. From the role of different levels of government, to insurance and the assessment of risk, to differential impacts within and among countries, law and lawyers will be pivotal in facilitating our efforts to mitigate and respond to the real-world impact of climate change.

What challenges does the reality of climate change present to the law? Find out by joining us for this critical discussion.

Objectives

  • Explore the implications of climate change for virtually all areas of law, and the challenges its impacts pose both for law and for those working with law.
  • Rethink who, what and how law regulates.
  • Understand the law’s role in addressing, responding to and mitigating the impacts of climate change.

Who Should Attend

  • Academics and students from all disciplines
  • Members of the legal community, including practicing lawyers and judges
  • Public policy professionals across all levels of government
  • NGO leaders
  • U of T alumni and friends

For legal professionals, CPD Professionalism Content accreditation has been requested. To register, visit my.alumni.utoronto.ca/lawinachangingworld. If you have any questions, please contact Jenny Fong: jenjen.fong@utoronto.ca


Agenda

Day 1: Thursday, March 2, 2023

Conference Registration (12:00-12:30pm)

Welcome to U of T Law! Please stop by the registration desk starting at noon to check-in.

Keynote and Q&A (12:30-1:45pm) - Kim Stanley Robinson 

Our keynote speaker will be American science fiction writer, Kim Stanley Robinson, who will speak to his award-winning book, The Ministry for the Future (2020). The book crosses over from the world of science fiction to contemporary policy discussions of climate change and catastrophe, gesturing towards the possibility of moving from our current dystopia to a better future. It underscores the premise that underlies our conference, i.e. that climate change affects everyone at all levels of society, and that an effective response to climate change will similarly require efforts at all levels, and from all areas of expertise.
 

Refreshment Break (1:45-2:00pm)

Session One (2:00-3:30pm) - Law in Times of Climate Change: Who Governs?

 
This session will explore questions of the rule of law and governance in times of crisis, including the challenges that climate change presents to some of the very conceptual foundations of law. How might the climate crisis require fundamental transformations in the roles of local, Indigenous, national, inter and transnational governance? Are law and democratic participation “sustainable?” The part addresses both the normative foundations of international and domestic law and the institutions that are needed to undergird effective policy.

 
Jutta Brunnée, “Between Stability and Change: International Climate Law in Precarious Times”

Our window for averting dangerous climate change is rapidly closing. What role can international law play in ensuring ambitious collective action in the context of a complex challenge like climate change? I will suggest that international law’s most important role is to provide a normative framework with which national policy debates can engage. Perhaps counter-intuitively, a combination of non-binding international principles of action and non-binding national commitments that can be swiftly altered by individual states are more likely to result in a stable climate regime than binding obligations that states must implement. This applies all the more in our current times of backlash against perceived international over-reach.

John Borrows, “Indigenous Law and Canadian Climate Governance”
 
Indigenous peoples have experienced climate change through deep time, human time, colonial time, and in our lifetimes. In all these experiences Indigenous peoples have made observations about how to deal with climate change and how to challenge its adverse effects. They do this through Indigenous measures, standards, principles, criteria, precedent, tradition, signposts, benchmarks, tenets, procedures and conventions and customs. This is to say, Indigenous peoples have laws to address climate governance. Indigenous peoples’ laws, flowing from their experiences with climate change, should be an important factor in climate governance. These laws contain, intellectual and cultural resources to help us make decisions, regulate our affairs, and resolve disputes related to climate justice in the present and future. In dealing with climate change, we should recognize and revitalize Indigenous law amongst the other important actions we pursue.

Ed Iacobucci & Michael Trebilcock, “Climate Change Policy: Institutional Design, Collective Action Problems and Democratic Accountability”
 
Formulating and implementing effective climate change policies has been described as a “super wicked problem.” Aside from questions of optimal policy, however, there is a prior question that is critical but has received much less attention: how should we design institutions to address climate change? A host of challenges confront institutional design in this context, including scientific and technical uncertainty, cognitive biases, collective action and coordination problems, and polycentric goals. Moreover, these challenges interact in ways that make institutional design even more difficult. For example, scientific uncertainty and cognitive biases do not interact constructively, with those prone to over-optimism willing to view any uncertainty over the precise impact of climate change science as providing support for inaction, while those prone to pessimism will view such uncertainties as justifying apocalyptic action. This article reviews these challenges, and their interaction, and considers practical responses to them in the context of Canadian institutional design. Clearly no institution can possibly address all concerns simultaneously, but we make suggestions for an institutional framework that balances the competing considerations.
 

Refreshment Break (3:30-3:45pm)
 

Session Two (3:45-5:15pm) - Law and Justice in Times of Climate Change

 
Climate change is acting as an accelerant of inequality and injustice locally, nationally and internationally. The drive to decarbonize raises issues of who bears the costs of and who is benefiting from the transition including the vague but important call to promote a ‘just transition’, within and among countries. Adaptation to climate change similarly gives rise to questions about who has to adapt, who will pay for the adaptation, who is included in our concerns about adaptation (both in terms of different people as well as other species and the natural environment) and how we should think about the health effects of climate change. This part will explore these themes of climate justice and injustice.


Chris Essert & Olivia O’Connor, “Reconciling Climate and Housing Justice”

Among the many pressing challenges facing liberal societies in a changing world are the climate crisis and the housing crisis. The need to lower greenhouse gas emissions quickly and sharply is well known. And Canada, for instance, desperately needs more housing, both to alleviate homelessness and to make housing more affordable. But residential construction (or construction generally) is a major source of greenhouse gas emissions. So it seems as though addressing the housing crisis head-on will make the climate crisis worse; conversely, while ceasing all construction would make a major difference on the climate front, it would obviously do nothing to address the housing crisis, and likely would make it worse. In this chapter we set out an approach to this apparent conflict, by describing the two crises in terms of justice and public law rights against the state and discussing a model for reconciling competing rights of that form.

Brenda Cossman, “Climate Anxiety and Self Governance”

Eco-anxiety -- the fear of environmental damage, climate change and ecological disaster -- has been recognized by The American Psychiatric Association as a growing threat to mental health. Studies are showing that individuals are experiencing extreme or chronic anxiety because they feel unable to control environmental problems, particularly climate change. My paper explores the role of eco-anxiety in projects of self governance produced in part from a pervasive sense of regulatory failure. I have previously explored the role of anxiety in self governance: the way that free-floating discourses of anxiety produce anxious subjects, who with the help of experts then undertake a range of self-governing projects in order to manage, mitigate, and reduce the unpleasant emotion. Here, I will consider the role of eco-anxiety in individualizing and depoliticizing solutions to climate change.

Trudo Lemmens & Gabrielle Peters, “How Climate Change Debates and Initiatives Are Shunning Disability Rights”

Negative impacts of climate change are disproportionately experienced by disabled people, particularly those who are Indigenous, poor, or living on low incomes, negatively racialized and/or older. In response, discussions often revolve around the vulnerability of affected individuals, as if this explains and justifies the greater harm they experience. While the disproportionate risk caused by, for example, extreme heat or poor air quality, are known, state interventions often focus on alerts to the public. These interventions tend to rely on individual rather than collective responsibility. Elaborating on Martha Fineman’s notion of inevitable social dependency, we will discuss why arguments based on disability inclusion within the standard individual rights framework are insufficient to create the necessary resilience and uphold the disability justice principle of leaving no one behind. Measures taken during and after the recent BC heat dome, which resulted in the deaths of approximately 600 people in one week, will illustrate our points. These deaths occurred in the same year that Medically Administered Death was expanded to disabled people who were not near the end of life, providing a stark contrast between proactive policy to hasten death, presented as safeguarding individual rights, and paucity of policy to support life. We provide specific recommendations, situated in the larger discussion about climate change and justice.

Anver Emon, “The Exploitation of Law’s Anthropocene”

This essay will explore the anthropocentric tendencies of modern, secular legal orders, and the exploitative logics they create in relation to a world, recast as (natural) resource. But is this only a modern feature of the law? An exploration into medieval Islamic legal history will examine the extent to which the law’s anthropocentrism persists across time, space, and legal tradition, including religious ones. By comparing the modern to the medieval, the secular to the religious by centering on law’s Anthropocene, the essay will explore whether law as a discipline has the capacity to grapple with our changing climate or will instead enable its continued exploitation.

 

Day 2: Friday, March 3, 2023

Registration and Refreshments (8:30-9:00am)

Session Three (9:00-10:30am) - Law, Institutions and Climate Change

 
The essays in this part consider the challenges that climate change presents to institutions of governance. How might responding to climate change require a transformation in existing modes of governance? Within government, does it require a renegotiation of the balance of powers between executive, legislative and judicial branches? Between federal, provincial and local governance? More broadly, might it require a recalibration of the relative roles of markets, private actors, governments and transnational organization? These issues speak to both our ability to slow climate change and to how we might fairly adapt to its impacts.


Alan Brudner, “Constitutionalism, Executive Power and Climate Action”

This essay inquires whether a constitutional state, understood as a state ruled strictly by laws rather than by natural persons, can give executive experts the rule-making powers they need to deal effectively with climate change. Drawing from Rousseau and Hegel, it distinguishes between two stringent models of the constitutional state: a democratic-republican model and one ordered to an autonomous concept of Law. It compares their abilities to accommodate an executive with a robust rulemaking authority. The essay concludes that, whereas the democratic model is hostile to executive rulemaking, the Law centred model is at ease with it and allows it to flourish within bounds. The Law centred model is thus the only one to reconcile a stringent concept of the constitutional state with the executive power needed to keep global warming in check. Other descriptions of the constitutional state (e.g., those of Hobbes and Kant) also empower the executive to the requisite degree, but at the cost of debasing the concept.

David Dyzenhaus and Megan Pfiffer, “Legality's place in a changing world”

The role of the rule of law in responding to emergencies caused by civil unrest is much discussed. Dyzenhaus has developed a theory of how such a response can productively happen through the coordination of legal institutions that permits a ‘virtuous cycle of legality’ to unfold. In such a cycle, institutions—the legislature, the judiciary, and the executive--learn from past experience how to achieve an appropriate balance between rights protection, furthering legislative objectives, and the need to defer to the expert judgment of officials in specialized agencies. In this paper, we highlight the worrying trend to embrace 'climate authoritarianism' as the appropriate response to the climate emergency, a trend which may be manifesting itself even in the jurisprudence of the Supreme Court. Here we focus on the dissents in References re Greenhouse Gas Pollution Pricing Act, but also point out that the trend may go beyond both this decision and the climate context.

Andrew Green & Albert Yoon, “The Most Dangerous Branch”

Climate change has the potential to alter many landscapes including the ground under the main institutions of government. This paper examines the shifting role of supreme courts and the implications for their role in assessing climate policy. It focuses on the dividing lines between the courts, the legislature and the executive primarily through two recent cases: the US Supreme Court’s decision in West Virginia v EPA and the Supreme Court of Canada’s decision in Reference re Greenhouse Gas Pollution Pricing Act. We look at the how the balance is being changed between expertise, political accountability, and legality through doctrines around deference and the limits of judicial review.

Mariana Mota Prado & Patricia Galvão Ferreira, “Who is paying for the costs of climate change? Insuresilience as an Institutional Bypass”

Climate change has raised a number of redistributive concerns, which are often labelled “climate justice”. One of the most pressing climate justice issues is the fact that some of the countries that contributed the least to the global climate crisis are the ones facing the higher costs, through climate related losses and damages. These developing and vulnerable nations have argued that it would not be fair to expect them to pay for such losses out of their own pockets. Yet, developed countries that contributed the most to the climate crisis are resisting the idea that they should have an obligation to pay for climate related loss and damage in other countries. In search for alternatives, Insuresilience was created. This is a global multistakeholder initiative to facilitate insurance mechanisms in climate vulnerable developing countries. It is a collaboration between the G20 and the V20 (the group of most climate vulnerable countries) and it also involves insurance companies, research institutes, multilateral organizations and high-profile individuals (who are currently members of high-level consultative group, the governing body of the initiative). Our main claim in this article is that Insuresilience is operating as an international institutional bypass of the UNFCCC Warsaw Mechanism on Loss and Damage, which is also promoting insurance pools and other financial instruments related to climate risks under the UN climate regime. As such, it has features that try to overcome some of the shortcomings of the UNFCCC Warsaw mechanism, as we describe in detail in this article. While at first sight Insuresilience looks like a promising innovation, we examine critiques and concerns including whether it offers a better option to resolve one of the most pressing climate justice issues of our time, or whether it is a second-best option that also creates the risk (often associated with this type of global public-private regulatory initiative) of reducing incentives to strengthen the multilateral Warsaw Mechanism.
 

Refreshment Break (10:30-10:45am)

Session Four (10:45am-12:15pm) - Lawyering in Times of Climate Change

 
Climate change is with us. This part will explore how it will change what we do as lawyers, judges and legal educators, and how we do it. Does the existential threat require a reconsideration of legal ethics? What are the ethics of climate change lawyering? What is the relationship between lawyering and civil disobedience? How do we think about legal standing and who gets to be represented? What types of strategies are likely to be successful in raising concerns about climate change?


Cheryl Milne, “Vulnerable Litigants and Radical Lawyering”

Given the urgency of climate change and its impact of young people into the future, some climate change advocacy groups representing children and youth have launched court challenges around the world, advancing arguments that risk little chance of success given the complexity of the cases and the innovative legal foundations for the claims. While one aim is to draw attention to the issue, are these cases ethically suspect? What are the ethical issues that lawyers need to consider when representing children who participate as test case litigants? A network of practitioners and lawyers are currently exploring the key principles that should guide child rights strategic litigation more generally, including how to meaningfully engage children in advocacy in a rights-respecting manner. While it might be argued that the climate crisis warrants radical tactics, this paper will explore the legal and ethical issues involved in radical lawyering for vulnerable litigants as a response to the existential crisis that is climate change.

Abdi Aidid, “Ethical Lawyering and Existential Threats"

Lawyers are deeply implicated in the climate crisis, yet the mechanisms we have for regulating lawyer behaviour – legal ethics regimes – are conspicuously absent from discussions about appropriate responses to global warming’s existential threat. To that end, this paper considers two questions. First, I ask whether legal ethics regimes (i.e. its rules and institutions) can play a role in responding to the climate crisis. I explain that because of lawyers’ involvement in everything from abetting corporate carbon emissions to pursuing climate justice to drafting legislation, legal-ethical rules are an underexplored lever for climate interventions. Second, I ask whether the discipline of legal ethics is capable of responding to challenges on the scale of the ongoing climate crisis. Here, I argue that challenges of an existential nature should motivate a reconsideration of some of legal ethics’ more narrow and provincial frameworks, namely the centrality of the lawyer-client relationship and the constraint of jurisdiction.
 

Lunch Break (12:15 – 1:30pm)

Session Five (1:30-3:00pm) - Law, Technology and Climate Change

 
This part will explore technology, climate change and law. It will consider (1) law’s role in promoting climate change innovation (e.g., nuclear fusion or geo-engineering); (2) the role of regulation in encouraging adoption of new mitigation measures; and (3) the climate change impact of energy-intensive new technologies such as bitcoin (and what, if anything, to do about it).


Benjamin Alarie, “Environmental Regulation, Technological Progress, and the Choice of Governing Instrument”

In their masterful work of 1982, The Choice of Governing Instrument, Trebilcock et al contend that, “There is considerable evidence that command-and-control types of intervention are inefficient and costly; and they delay technological progress. Yet, in North America, environmental protection is almost universally pursued through command-and-control types of intervention, with little or no use of market incentives. While economists have been critical of the inefficiency of this policy choice, the choice becomes easy to understand, if not inevitable, when one examines [its] political rationality.” This essay observes that, contrary to the strongest version of this claim, market mechanisms have in fact been recruited by lawmakers to combat climate change (e.g., carbon taxes, cap-and-trade, etc.) Taking the failure of the strongest version as a point of departure for the analysis, this essay assesses how well a softer version of the claim has fared in contemporary legal regulation of greenhouse gas emissions. The essay concludes with lessons for prospective greenhouse gas regulation.

Anthony Niblett, “How Law Can be Best Used to Incentivize New Technology to Combat Climate Change Problems

What role does law play in finding technological solutions to climate change? How can governments incentivize new technologies to either mitigate climate change (such as carbon sequestration) or develop efficient, clean alternatives to harmful activities? The market will not solve the problem. It fails to incentivize investment in innovation because knowledge is a public good. But the archetypal legal solution – assigning property rights to innovations – also fails here. Mitigating climate change, like knowledge, is a public good. The free rider problem is pervasive.
 
This paper explores alternatives, focusing on government "prizes". Should governments offer prizes for general innovation in climate change, or would it be optimal to offer prizes for solutions to specific problems such as carbon sequestration? Should prizes be offered for potential solutions (grants) or the realization of successful solutions? Perhaps most importantly, how do we ensure international cooperation between governments to mitigate the free rider effect across jurisdictions?

Gillian Hadfield, “Why We Need Legal and Regulatory Innovation to Meet the Climate Challenge

Today’s “regulatory technology” consists primarily of jurisdictionally-located text-based rules, systems (like public investigation or private rights of action) to identify violations, and penalties intended to channel behavior towards the requirements set out in text. But this technology is increasingly unable to respond to increasingly complex, global, data-intensive and rapidly-evolving challenges (like AI and the climate crisis). The regulatory technology of the (very near) future needs to include actual technologies. In the context of the climate crisis, for example, effective regulation is likely to require (likely AI-based) technologies that can track, audit and even intervene on complex and dynamic systems intended to balance and reduce emissions. But how will such technologies be invented and built? Entities producing emissions will have some market incentives to invest in innovation of these regulatory technologies, but these incentives are likely to lead to under-investment and will not clearly be responsive to public, as opposed to private, cost-benefit analysis. In this talk I’ll describe the model of what I call regulatory markets—the creation of a sector of government-licensed/approved/regulated private regulators who provide regulatory services to regulatory targets—as a model that can generate the incentive for innovators to develop independent regulatory technologies while ensuring these technologies remain aligned with democratically-determined values.
 

Closing Reception (3:00-4:00pm)

 

Please consider taking public transit when attending. Parking on campus is limited. More information can be found by visiting transportation.utoronto.ca.

Toronto climate march photo by Lewis Parsons via Unsplash