• Prof. Dr. Kirk W.

Junker, Faculty of Law

• Director, Environmental Law Center

• Examination Board Chair, International Master of

Environmental Sciences
 UoC Law Faculty Students:
◦ Environment
◦ Comparativism

 UoC International Master of Enviromental Science Students:

◦ Law
◦ Comparativism

 UoC Culture and Environment in Africa Students:

◦ Law
◦ Science

 Bharati Vidyapeeth University Institute for Environment Education and

Research (BVIEER) Pune, India
◦ Law
◦ Comparativism

 UoC Eduventure Virtual Mobility Students

◦ Law
◦ Science
Law is a human linguistic invention through
which groups of more than 150 humans
(Dunbar number) negotiate their relationship to
other groups.

Therefore, environmental law would be a

human linguistic invention through which
groups of more than 150 humans negotiate
their relationship to the material world with
other groups.
Currently, the dominant linguistic invention
through which groups of more than 150
humans negotiate their relationship to the
material world is industrialism.

 The North has it;

 the South wants it.

◦ This tension remains the core environmental

problem, even in domestic environmental law.
Rationally, Industrialism Is a Failure

October
7.89 bn
2021
Annual total CO2 Emissions by World
Region
World Average Temperature Change over Time
(IPCC and Michael Mann/Penn State)
 Are Humans Rational?
• Distinguish:
– Instrumental rationalism
• 2017, Richard Thaler, Nobel Prize Economics
– Irrational Economic Choice
– “nudging“
– Value rationalism (Max Weber)

• In the West, Aristotle wrote (in Nicomachean Ethics, X) that

our “telos“ is rationality, but it is not a matter of choice, but
rather a matter of patterned behavior.
• How do we establish rational patterns?
• Consider for the next weeks‘ discussion: Is law capable of creating a
pattern of behavior that counts as rationality?
 Climate Disruption as a Case Study:
An Example of Interdisciplinary Solutions to Problems
IPCC climate change report called for urgent action to phase out fossil
fuels. Urgent changes needed to cut risk of extreme heat, drought, floods
and poverty, said the 2018 IPCC Report

Observers agree that this was the first time that one could observe
a general public response since 1992.

“We have 12 years to limit climate change catastrophe” warned the UN in

2018.

(NB: Now, in 2021, we have 9 years. Floods, fires, earthquakes

and irregular volcanic eruptions all happened in the last 5 months!)
 George Monbiot, Guardian blog,
October 8, 2018
We know that #climatebreakdown presents an existential risk to human populations
and much of the other life on Earth. Yet the gas guzzler still accelerates towards the
cliff edge. Why?

1. Because the lobbying power of fossil fuel-based businesses outweighs that of any
other faction. The fossil fuel industry uses its profits to lobby for continued extraction
and use. Its tactics are highly sophisticated.
2. Among these tactics is the use of covertly-funded front groups, denying or
downplaying the risks, and granted a platform by a receptive media, much of which is
owned by members of the same oligarchy. The media misrepresents both the problem
and the necessary solutions.
3. This campaign of denial resonates with an innate resistance to change, reinforced
by a tendency known as System Justification: a fundamental human weakness.
4. But deeper than any of this are the stories we tell ourselves: that progress means
growth and growth means wellbeing. What #climatebreakdown and the rest of the
environmental crisis reveal is that perpetual growth is the greatest threat to our
wellbeing.
5. Perpetual growth was impossible until coal was widely used: before then, industrial
expansion led to agricultural depression, breaking the cycle of accumulation (see EA
Wrigley, Energy and the English Industrial Revolution). So we came to see progress =
growth = fossil fuel
 Monbiot, cont.
6. We know what we need to do. Leave fossil fuels in the ground. Replace
them in their entirety with cleaner energy technologies. Recognise planetary
boundaries as the limits economic activity should not transgress. Set
wellbeing as our goal, rather than growth.
7. This shift will not occur through buying different products or reducing the
use of plastic bags, or any other form of voluntary consumer action, valid as
these may be. It will occur only through political action.
8. What does this mean? Mobilisation on a massive scale, through groups
such as http://350.org , to put environmental breakdown at the front and
centre of political life. We need to break through vested interests, denial and
System Justification to force government action
9. This is the fight of our lives. Yet most people have not yet acknowledged it,
let alone joined it. So all those of us who have done so have a duty to recruit:
to break the awkward silence and talk about the subject other people want to
avoid.
10. We need to get embarassing about it, to overcome our own reticence,
even when we are labelled Jeremiahs or Cassandras, and risk upsetting
people in alerting them to what is happening and what we need to do.
 From Psychology: System Justification
Why do some women feel that they are entitled to lower salaries than
men, why do people stay in harmful relationships, and why do some
African-American children come to believe that white dolls are more
attractive and desirable than black dolls? Why do people blame victims
of injustice and why do victims of injustice sometimes blame
themselves? Why is it so difficult to get people to stand up for
themselves, and why do we find personal and social change to be so
challenging, even painful? Why do so many poor people oppose the
redistribution of wealth? Where is the outrage, even after a succession
of worldwide financial crises, meltdowns and bailouts?

– See John T. Jost, “A Theory of System Justification,” American

Psychological Association, (2017)
https://www.apa.org/science/about/psa/2017/06/system-
justification.aspx
 The IPCC produces a full assessment every five years (not
yearly).
 The next five-year report will be Sixth Assessment Report
(AR22) will be completed in 2022.
 Working Group I for AR22 provides the Physical Science
Basis. Working Group I’s report was the first installment of
AR22. It was approved in August, 2021, by 195 member
governments of the IPCC, through a two-week virtual
approval session.
 Working Group I noted that if states become carbon
neutral, benefits for air quality would come quickly,
but it could take 20-30 years to see global
temperatures stabilize because of carbon already
loaded to work through its impact.
 Beginning with the first assessment report,
the IPCC has taken stronger and stronger
language on the causal connection of human
activity and climate disruption.
 Working Group I, the Physical Science Basis
now says “It is indisputable that human
activities are causing climate change, making
extreme climate events including heat waves,
heavy rainfall and droughts, more frequent
and severe.“
Can Law Contribute a Solution?
Law-making has done little to solve the problem due to fossil fuel
public influence money.

Citizens Politicians
vote are elected

Companies Companies
spend spend
billions on billions on
advertising lobbying

Politicians
make
legislation
Can Law Contribute a Solution?
Some progress has been made through creative litigation.
Citizens
litigate; Politicians
citizens are elected
vote

Companies Companies
spend spend
billions on billions on
advertising lobbying

Politicians
make
legislation
2015: The Dutch Urgenda Foundation took legal action on behalf of 886
citizens took legal action in the District Court of the Hague against the
Dutch Government to hold it accountable for contributing to dangerous
climate change. The Court ruled that the government must cut its
greenhouse gas emissions by at least 25% by the end of 2020 (compared
to 1990 levels) and must immediately take more effective action on climate
change. The Dutch government appealed the judgment against it

2018: The Hague Court of Appeal upheld the 2015 court decision. The
state then lodged an appeal to the Supreme Court of the Netherlands.

2019: The Dutch Supreme Court rejected the appeal and upheld the 25%
reduction requirement. In its ruling, the Supreme Court affirmed that the
Dutch government was responsible for management of carbon dioxide
emissions for the country and was bound to protect human rights.

Since 2019: Urgenda claims its lawsuit led to similar climate justice
lawsuits in other countries, including Belgium, France, Ireland, Germany,
New Zealand, Britain, Switzerland and Norway.
“Nigerians win UK court OK to sue Shell over oil spills”
-Julia Payne, Kirstin Ridley (Reuters, London-February 12, 2021)

The UK Supreme Court allowed a group of 42,500 Nigerian farmers and fishermen to
sue Royal Dutch Shell (RDS) in English courts after years of oil spills in the Niger
Delta contaminated land and groundwater.

Senior judges said there was an arguable case that UK-domiciled Shell, one of the
world’s biggest energy companies, is responsible, in the latest test of whether
multinationals can be held to account for the acts of overseas subsidiaries.

The Nigerians argued that the parent company Shell owed them a duty of care
because it either had significant control of, and was responsible for, its subsidiary
SPDC. Shell countered that the court had no jurisdiction to try the claims.

“(The ruling) also represents a watershed moment in the accountability of

multinational companies. Increasingly impoverished communities are seeking to hold
powerful corporate actors to account and this judgment will significantly increase
their ability to do so,” said the plaintiffs’ lawyer, Daniel Leader.
The UK decision against RDS came two years after a seminal
ruling by the Supreme Court in a case involving mining firm
Vedanta. The judgment allowed nearly 2,000 Zambian
villagers to sue Vedanta in England for alleged pollution in
Africa.

That move was seen as a victory for rural communities

seeking to hold parent companies accountable for
environmental disasters. Vedanta ultimately settled out of
court in January.

SPDC is the operator of oil pipelines in a joint venture

between the Nigerian National Petroleum Corporation which
holds a 55% stake, Shell which holds 30%, France’s Total
with 10%, Italy’s Eni with 5%.
 Deciding a complaint filed by young climate activists, German Federal
Constitutional Court issued a groundbreaking order on March 24, 2021,
holding the 2019 German Federal Climate Change Act as partially
unconstitutional.

 The Court argued that the Climate Change Act's provisions on national
climate targets and annual emission amounts allowed until 2030 are
incompatible with the fundamental freedom rights of the plaintiffs.
Further, the existing provisions also lack sufficient specifications for
further emission reductions from 2031 onwards.

 The Court ordered the German legislator to amend the Climate Change
Act by 31 December 2022, introducing more specific provisions on how
the reduction targets for CO2 emissions shall be adjusted beyond 2030.

 Despite being granted more than a year and a half to react to the
Constitutional Court's order, the Bundestag already adopted an amended
Climate Change Act with revised and stricter emission goals.
2021: Fifty-one years after losing a lawsuit in
Nigeria, RDS agreed to obey the decision of a
Federal High Court in Nigeria and pay 110
million dollars as compensation to the
community affected by an oil spill that incident
that happened in 1970, because it lost its final
appeal at the Supreme Court.
The Challenge for All Disciplines in All Cultures
 Environmental Problems:
How Many People Have Ever Lived on Earth?
108 Billion
 From Anthropology:
Of the 108 Billion, more than 90 billion
have been hunters and gatherers.
• As of 1999, 90 percent of all humans who ever
lived had been hunters and gatherers.
– --Lee, Richard B.; Daly, Richard Heywood
(1999). Cambridge Encyclopedia of Hunters and
Gatherers. Cambridge University Press.
• When the world’s oldest preserved census
was taken, Domesday Book, in England in
1089, 90 percent of the English population
were rural.
Yet We Consider Industrialism To Be
“Normal”
 2016--Prof. Stephen Hawking, in Reith
Lectures, stated:
Humanity is at risk from a series of dangers of our own making, according to Prof. Stephen
Hawking.
Nuclear war, global warming and genetically-engineered viruses are among the scenarios he
singles out.
And he says that further progress in science and technology will create "new ways things can
go wrong".
Prof Hawking gave the 2016 BBC Reith Lectures, exploring research into black holes, and his
warning came in answer to audience questions.
He says that assuming humanity eventually establishes colonies on other worlds, it will be
able to survive.

"Although the chance of a disaster to planet Earth in a given year may be quite low, it adds
up over time, and becomes a near certainty in the next thousand or ten thousand years.
"By that time we should have spread out into space, and to other stars, so a disaster on Earth
would not mean the end of the human race.
"However, we will not establish self-sustaining colonies in space for at least the next hundred
years, so we have to be very careful in this period.“

Compare: Do end-of-life individuals prefer to be kept alive artificially?

The Problem: Unjust or Unsustainable?
• Northern industrial practices, are
unsustainable.
• Depriving southern peoples from the benefits
of industrialism is unjust.
• What is the contribution of law to maintaining
the status quo ante (unsustainability and
injustice)?
• What can be the contribution of law to
changing to sustainability and justice?
 From Legal Anthropology
• Only homo sapiens use language to speak about things that
don‘t physically exist—we call it fiction.
• Fiction has enabled us not merely to imagine things, but to do
so collectively.
• Myths give us the ability to cooperate flexibly in large numbers
with others whom we do not know (unlike ants and bees).
• The value of money is one of these fictions. We establish
“intersubjective truths.“
• Law, not science, invented the concept of the fact.
• Fact must be distinguished from truth. In law, facts are
accurate representations of acts. Truths are abstractions to
apply to all contingencies.
 More Legal Anthropology
•
(Dunbar Number)
When two male chimpanzees (our closest cousins) contest for the
alpha position in the hierarchy of their tribe, one wins the
position not because he is physically stronger, but because he
leads a large and stable coalition of others, which he has formed
based upon daily contacts, which includes hugging, kissing,
touching, mutual favors and . . . gossip. Gossip usually focuses on
wrongdoings and serves to keep order in the tribe.
• Research shows that the common size of a chimpanzee group
bonded by gossip is about 150 individuals. The threshold in
human organization falls around the same number. Below the
threshold, communities, businesses, social networks and military
units can maintain themselves based upon intimate
acquaintances and gossip. Above that number, other means are
necessary—formal ranks, titles and law books.
• Consequently, one can see the anthropological role for law in
irrational society. What then becomes our task in law regarding
the environment?
 Combining Environmental Science with
Environmental Law
• Environmental Science provides the factual basis by
which we know the state of the world, and predicts
the future state of the world based upon those facts
and current theory.
• Environmental Law creates norms that control
current human behavior and guide future human
behavior.
• Environmental law begins with environmental
science to create norms that control current human
behavior and guide future human behavior.
Distinguishing Environmental Science from
Environmental Law
Environmental Science = What is.
• (Ontological description.)

Environmental Law = What ought to be.

• (Normative prescription.)
Creating Environmental Norms
 It is humans who decide what we want the environment to
be for humans and thus it is humans who create the norms
of the environment.
 Examples
 Water only from a bottle?
 Are tasteless tomatoes just a step along the way to “food substance“
instead of food?
 When will it become as normal to get our air from a bottle as it has
become to get our water from a bottle?

 NB: A false distinction is to call something ‘‘natural.“

Atomic weapons, as a product of the human, are as natural
as any other product of the human.
Assignment For Next Week:
READ Environmental Law Across Cultures:

Chapter 1: “Why Compare? The Biological, Cognitive,

and Social Function osf Comparision for
the Human
Chapter 2: “A Taxonomy of Comparison: The Accessus
ad auctores”
All course materials are posted on ILIAS.