The role of law in the national and global response to climate change and loss of biodiversity

The Norwegian Academy of Science and Letters claims that climate and environmental issues challenge the traditional rules of law. Action will require the development of new legal instruments, and a renewed line of demarcation between politics and law.

Legal instruments, such as universal national insurance and the licencing system for oil production, have contributed to the basis for growth and prosperity. Faced with challenges regarding the environment and climate, we are now in need of legal innovations.

We need to reshape our political and economic systems and practices. In many cases, implementing measures may require legal means. Keeping the temperature increase well below 2°C relative to pre-industrial levels, and halting and reversing the loss of biodiversity requires sweeping societal changes within and across all sectors. This process has to have a scope and speed that the world has never seen. Sustainable development, which entails a balance between production (economic considerations) and fairness both between rich and poor (social considerations) and between generations within nature’s tolerance limits (environmental considerations), requires new legal instruments to translate knowledge into action.

Legal innovations are not only driven by political and other socially relevant processes, but also by national and international courts and by actors within the judiciary. As the third branch of government, the courts can fill a political void. Jurisprudence can also help by describing the legal reality and discussing the legal scope of opportunity. The battle against climate change and loss of biodiversity requires a legal and judicial system that can translate political requirements and scientific consensus into concrete actions and obligations, and which also calls for commitment to these objectives.

However, the use of legal instruments has its own challenges, which the law and jurisprudence must help to resolve:

Necessary climate and environmental measures challenge the traditional interpretation and use of the existing rules of law. The authorities need broad powers to act quickly and adequately. Often, powers that are granted to promote other purposes must be used to safeguard environmental considerations, even if that was not their original intention. Jurisprudence has an important task here to show what is possible and how it can be justified. The effects of dramatic climate events such as storms and floods may require the authorities to act on the basis of the principle of necessity and emergency powers.

How far legal regulations can be taken is primarily a political issue, but the research can shed light on the existence of instruments, the consequences of the choice of instruments and how this affects other fundamental values. Research in areas including law, philosophy, economics and political science is required to answer how judicial measures can be designed while protecting democracy and the rule of law. In these disciplines, the boundaries of state power and the relationship between state powers are analysed through key concepts such as legitimacy, juridification, separation of powers and judicial autonomy.

Extensive use of legal instruments that transfer power from the market and political actors to the courts may be necessary. We see that freedom of action in democratic bodies can be challenged both by supranational regulation and by national rules. In Norway, we recently had a plenary case before the Supreme Court concerning whether Norway acted in violation of the environmental provision in Article 112 of the Constitution when the production licences in the Barents Sea southeast were granted in the 23rd round of licencing. The environmental organisations lost the case. In the Supreme Court’s opinion, Article 112 of the Constitution is a provision of rights that only exceptionally can be used by courts to overrule the Norwegian parliament’s assessment of what environmental considerations require.

Does Article 112 of the Constitution become merely a symbolic paragraph without force, or is it detrimental to democracy if courts can override efforts by the Government and the Storting to provide the country with revenue and resources? If the court is not to override economic policy, it is economics and partly the fairness aspect of the concept of sustainability that is emphasised. The rationale is then that "assets must be created before they can be shared". But the question of the extent to which the future of children is destroyed (sustainable environment) is not emphasised.

There may be a need for a borderline between politics and law should Norway want to reduce its output of oil and gas at a later date by restricting the production rights of the licence holders. In September 2019, six Portuguese children and young people filed a lawsuit against 33 states (including Norway) before the European Court of Human Rights. In the case, the plaintiffs argue that the 33 countries are violating children’s right to life by not implementing more ambitious climate change measures in line with the goals of the Paris Agreement. Norway wants the climate crisis to be on the Security Council’s agenda: https://www.regjeringen.no/en/topics/foreign-affairs/the-un/climate_security/id2704855/. Here, too, there may be reason to be prepared for a discussion about what constitutes legal issues and what belongs to the domain of politics.

Dealing with climate change and loss of biodiversity requires the development of new legal instruments in addition to those we already have today. An example is so-called "climate laws" that incorporate political climate objectives into the national legal system. Emissions’ trading is another instrument that is based on a complex system of legal rules. We see initiatives, particularly in the EU, that are utilising this right in a new way: regulation of deforestation-free supply chains, rules for state aid, duty of care norms for companies, taxation, insurance, trade rules, even criminal law is used for climate and nature protection purposes. Managing environmental issues requires regulations that are cross-sectoral and that stimulate the prioritisation of long-term rather than short-term benefit. We must therefore develop legal instruments that provide rewards for taking long-term action to benefit the environment and impose consequences for short-term actions.

The capacity for judicial innovation has created great societal values. The economist and Nobel laureate Douglas C. North and political scientist Francis Fukuyama both point to the impact of the development of both insurance systems and of companies that have limited liability – what we now know as limited companies – on the West’s current economic and political position. Legal innovations such as insurance, credit and corporate arrangements in the 13th century laid the groundwork for the economic development of the West that we enjoy today.

The best example in recent times that a legal innovation can have a major impact on society is the Act of 21 June 1963 relating to scientific research and exploration for and exploitation of subsea natural resources other than petroleum resources, which determined that the right to this belongs to the state, and the Norwegian licencing system was established. This enabled Norway, as the first country in the world, to regulate relations with powerful international oil companies from a position of supremacy, and not as a contracting party. In this regard, it is important to research whether, and how, this instrument can be used to address the climate challenge – or whether new instruments are needed.

Sweeping social changes require that all governance signals, including the judicial ones, point in the same direction, and do not contradict each other. They must be adapted to the purpose, be effective, fair and be proportionate to the objectives. This requires jurisprudence that transcends the legal disciplines and views several areas in context, so that the legislator and the courts can gain a necessary overview. It also requires cooperation between jurisprudence and other disciplines, since the design of adequate public policy instruments requires comprehensive insight into climate change and its link to biodiversity, technology, economics and the acceptance of the public.

Hans Petter Graver (president of the Norwegian Academy of Science and Letters) and Nils Chr. Stenseth (chair of the Academy’s Committee on Climate, Environment and Resources )