Climate Change, Environmental Law and the Coronavirus: Crisis or Opportunity?
Chris Hilson, Professor of Law, Director of the Centre for Climate and Justice, University of Reading
While on one level it is hard to think much about environmental and climate law during the height of the Coronavirus or Covid-19 (CV-19) outbreak, it is worth exploring the connections between the two, because one crisis may have important lessons for the way in which we handle the other.
First, it is important to establish that the connections can point in opposite directions. We can consider how our approach to the environment, including allowing poorly regulated ‘wet markets’ in wild animal meat – but also in stressing habitats via human encroachment on ever-increasing swathes of territory – creates the ideal conditions for viruses to escape into human populations. In contrast, we can also examine the impact which the current virus has had on the environment and environmental law and politics (including climate change). This comment is concerned principally with the latter.
Both climate change and the control of diseases via public health are, fundamentally, about regulating risk. It should come as no surprise then that we see both climate modelling and modelling in relation to CV-19. With each, governments need to know what the likely effects of their policy responses will be. No one can say for sure, but modellers are able to provide a range of likely outcomes based on what we know from previous experience. We also see other issues associated with risk across the two including, for example, risk communication (how best to communicate with the public in order to get them onboard with the policy response and also to achieve desired behavioural change) and the role of the precautionary principle (not waiting for certainty in the science before taking action). Public perceptions of risk are also important: CV-19 is an example of an immediate, involuntary, dread risk which may pressure governments to go beyond what they had previously taken to be a rational policy response. In the case of the UK, while the government on the face of it moved to a stricter lockdown-based, suppression policy because new modelling data suggested the NHS would be overwhelmed by its previous mitigation approach, some media commentators on the right claimed that they were, in fact, driven by public pressure, and wrongly so. However, especially as things stand, it is hard to escape the conclusion that the public were right. Climate change has suffered from the opposite problem to that alleged above, in that governments have typically been insufficiently pressured by public perceptions, which have historically underplayed the risks associated with global heating. That tide had arguably begun to change over the last year, especially after, for example, the Australian and Brazilian wildfires and major floods in the UK. However, the availability heuristic within the public perception of risk literature suggests that there is a danger that the current CV-19 crisis, as the most recent, available one in people’s memories, will simply eclipse those previously salient manifestations of the climate crisis.
Furthermore, environmental lawyers are likely to be familiar with risk-based enforcement, whereby, instead of monitoring and enforcing all firms equally, regulatory agencies focus their limited enforcement resource on producers who pose the greatest pollution risk. This has some parallels with current CV-19 public health policy response options. Does one choose a societal lockdown approach for example, which is a very blunt, blanket policy, or is a targeted approach to risk better,
relying more on mass testing, contact tracing and subsequent quarantine? At the time of writing in the UK, it seems that with CV-19 we currently require a combination of the two.
The physical impacts of CV-19 on environmental and climate law and politics
In terms of the impacts of CV-19 on the environment and climate change, one obvious impact lies in relation to the everyday physical politics of climate change, which has been severely disrupted by the current outbreak. CV-19 has shut down much of society and no one can be certain exactly when things will get back to normal. The crucial COP26 climate summit, which was due to be held in Glasgow in November 2020, has just been postponed. The virus has also shut down physical (though not online) climate activism such as the school strikes and some activists, including Greta Thunberg, are themselves thought to have caught it.
A further physical manifestation of CV-19, this time on environmental law rather than climate politics, comes in relation to environmental permitting. During the shutdown, many critical industries (including food manufacturing and energy supply) will keep going, but some of those may be short-staffed and others may require permit changes if product lines are switched. Equally, many will have shut down, temporarily or otherwise, and this too may trigger notification obligations under permitting regimes . How environmental regulatory agencies approach enforcement of permitting during the CV-19 crisis is of course the logical follow-on issue from this and in the US, there has been justifiable criticism by environmentalists of the Environmental Protection Agency’s decision to relax its approach to enforcement (albeit on a temporary and risk-targeted basis).
A climate change imaginary
The physical reduction in greenhouse gas emissions, caused by the widespread industrial and transport shutdown in response to the virus, has been widely noted. This is, however, a temporary, one-off win, which is also true of the equally widely observed co-benefits such as cleaner air (notably in Chinese cities) and water (such as in Venice’s canals, freed of water traffic and cruise ships) and improved nature conservation (through lower human interference because of lockdown). The question remains whether it will produce the necessary longer-term change needed to tackle climate change. In fact, the climate imaginary provided by the shutdown could indeed help shape a longer-term response, because it has shown us what a climate friendly future might look like. This imaginary, with closed airlines, empty roads and shopping malls, consumption reduced to the real essentials, and videoconferencing and home working, forces us all to question our previous, taken for granted, way of life. This could of course go in one of two directions. In many instances, showing us that it is possible may well pave the way to enduring, low-carbon change, especially given that the restrictions we have been experiencing in the current outbreak are much more severe than those likely to be necessary to tackle the climate crisis. One could easily expect more employers to allow people to work at home and avoid emissions through commuting for example. However, absence may well make the heart grow fonder so that some may, equally, conclude that, say flying and international travel is, for them, a non-negotiable part of what gives their life value. There is also a danger of a widespread backlash, with people’s immediate instinct being to return to the excesses which drive modern economic growth and underpin their employment and pensions. Even in the short term, there is a risk of governments and companies wanting to ramp up production and consumption to make up for recent losses – thereby running the risk of cancelling out even the temporary climate wins stemming from the CV-19 shutdown.
While the elements listed above are all striking but unthreatening aspects of the climate imaginary, the virus also takes us to more frightening parts of it. We have seen real fear, for ourselves or loved ones, of catching the virus, and also fear of the breakdown of the complex systems, including food and other essential supply chains, that are associated with modernity. This reminds us starkly – in common with climate change – that we are part of nature and that we and our systems remain vulnerable to its forces rather than being masters of it .
The energy transition
The combination of Saudi Arabia’s price war with Russia and a rapid fall in demand for oil as a result of the CV-19 outbreak has led to oil prices dropping from around $60 per barrel to nearer $25. On top of major moves towards fossil fuel divestment on ESG (environmental, social, and governance) grounds in recent months, coronavirus might thus be seen as the final nail in the coffin for the fossil fuel industry, much of which is uneconomic at these price levels. If investors needed a reminder of why fossil fuels are not a good investment, this price drop has provided one: oil company share prices have been badly hit, while renewables have remained relatively resilient during the stock market sell-off. It is, in that way an investment imaginary of what a time of reduced demand for oil might look like. There are, of course, counter arguments. Continuing low oil prices post the CV-19 crisis could be bad for the climate as these are historically associated with increased demand for transport for example (flights and driving conventional vehicles become cheaper). However, if there is a severe economic recession, then such demand is unlikely. In any event, as commentators have observed, moves towards decarbonisation of the economy, including transport, are now largely legislatively locked in, which means that this risk is much lower. And changed habits around travel arising from CV-19 could well stick, which also means that demand may remain reduced despite lower prices. Government might even usefully use the opportunity presented by low prices to decrease fossil fuel subsidies or introduce carbon taxes. Nevertheless, commentators have pointed out that the economic crisis which has come with the coronavirus crisis, may also hit investment in renewables . This includes large oil companies like Shell and BP, whose stated ambition to transition their business models towards clean energy may now face resource constraints.
Some economic sectors hit by the recent shutdown, including airlines, have been in receipt of or are in line for various forms of government support or bailout. These, the environmental movement has argued, should generally come with green conditions attached , requiring, for example, the faster scrappage of inefficient planes, or more rapid achievement of net zero corporate emissions targets. Support measures or economic rescue plans should, in other words, be designed with climate change and the energy transition in mind. The opportunity provided by the current crisis should not go to waste.
A distrust of experts and expertise is a hallmark of right-wing populism and thus it is no surprise that populist leaders such as Trump and Bolsonaro have been associated with climate denialism. With CV-19, science and expertise seems to be back in fashion among at least some right-wing populist leaders. In contrast to the anti-expert leanings of the Brexit Leave campaign of which he was a key part, Boris Johnson, for example, has been conspicuously flanked by experts in his CV-19 press briefings. However, this acceptance of the science is far from universal. Virus denialism has been exhibited by other right populist leaders, with Bolsonaro, for example, continuing to characterise CV-19 as ‘just a little flu’. Trump appears to be treading a confused middle line: while he calls on scientific disease experts at White House press briefings, he has also not been afraid to air his own views which have been cavalier with the accepted and tested science. Commentators have, in addition, pointed to his inclination to cut funding for regulatory agencies housing relevant scientific expertise – true of both environmental and public health regulation. A populist scaling back of experts does not look clever when overwhelming crises require just the opposite: a degree of resilience and spare capacity in federal agencies.
An appeal to the real or authentic people is another key feature of populism. Just as we have seen the ‘People’s climate case’ in the context of climate change litigation against the EU, so too in India Prime Minister Modi has framed the CV-19 shutdown as the ‘people’s curfew’. With Trump, in the case of both climate change and CV-19, he has typically expressed a concern about the left behind people of the US, who he has sought to defend via economic nationalism. With climate change, this has involved a championing of domestic fossil fuel producers (both coal and shale oil and gas) and a rejection of climate change measures, which are seen as imposing costly regulatory burdens on the US economy. This nationalism also involves the othering of foreigners, especially the Chinese. Trump has famously Tweeted that ‘[t]he concept of global warming was created by and for the Chinese in order to make US manufacturing non-competitive’. Similar nationalism has also featured in Trump’s treatment of the CV-19 crisis, with him framing it as the ‘Chinese’ virus; and there too he has exhibited a like concern for the American economy over public health (for example, initially speaking of wanting everything back open for business by Easter 2020). The concern now is that he has already begin to deregulate environmental laws because he regards them as an expensive brake on recovery from the economic shock of CV-19. Vehicle emission standards, for example, have found themselves in the firing line in the US. Of course, this is not a concern unique to populist leaders. In the EU for example, the motor industry has also lobbied the EU Commission to relax the deadline for the coming into force of new vehicle emissions standards, and China is similarly looking to relax them. This does not bode well for a truly sustainable economic recovery from the current shock.
Populism often comes with authoritarianism, which involves significant restrictions on individual liberties. This, again, points up some important similarities between climate change and CV-19. Both are existential crises and have been declared as emergencies for which a war footing is an appropriate response. In wars and civil emergencies, civil liberties tend to be widely curtailed. We have, thus far, not had any populist climate authoritarian political leaders in power. The inclination towards a form of green authoritarianism has come largely from groups like Extinction Rebellion, whose net zero climate target of 2025 would almost certainly require significant restrictions on liberties, including on flying and car use, even if these would not be on the scale we are currently experiencing. The question remains – adverted to earlier – whether, after the current virus crisis, people will have the appetite for restrictions on freedom of movement in this way. Some new habits are likely to stick, but others will not.
Equally, it is interesting to analyse which of the two crises is considered and treated by society and governments as a real crisis. Why is it that CV-19 can lead to such sudden shutdowns and economic firepower when climate change is also a serious existential crisis but has produced nothing like the policy responses we have seen over a matter of weeks? As mentioned above, the framing has been similar, with both spoken about in the language of war, emergency and crisis. However, while CV-19 has delivered a response appropriate to this framing, climate change has not. Manufacturers have reacted in a wartime way for CV-19, with Dyson tasked with building emergency ventilators for the UK, and yet with climate change we still have not managed to tackle low hanging fruit such as insulating all homes, let alone producing carbon capture and storage or artificial CO2 removal technology at scale. Of course, the reason for this difference in treatment goes back to public perceptions of risk discussed earlier and what people think of as a ‘real’ emergency. Because of the longer timescales associated with climate change, which are unlike the daily, rising mortality figures of CV-19, it has not received the same policy response. Climate change is easier for governments to put off, because the impacts (in terms of domestic deaths) are not as electorally immediate.
The role of justice has been central to many of the key debates around climate change, in terms of burden sharing internationally (with the legal principle of common but differentiated responsibilities for example), domestically (ideas of just transition) and between generations (intergenerational justice). Justice is also crucial in any discussion of the current CV-19 crisis. There needs to be careful consideration of how any policy response will impact the poorest in society domestically – and many of the recent support measures for employees and the self-employed show an appreciation of this. However, it is also clear that internationally, the poorest countries with the weakest healthcare systems are likely to be hardest hit, and it is important that appropriate international support is provided to them. Finally, measures being taken in relation to the virus will, like climate change, obviously affect future generations (not least in relation to significant debt arising from CV-19 bailouts), and their interests need to be taken into account in legal decision-making. In the end, both climate change and CV-19 are about risk and a common issue is how that risk and the burden of addressing it gets shared out . Considerations of justice mean that we should truly all be in it together.
While there are many similarities between the climate crisis and CV-19, there are, as we have seen, also important differences, not least in terms of how quickly governments have been prepared to mobilise an appropriate policy response. Lessons can clearly be learned from the climate crisis for those tackling the current CV-19 crisis – for example in relation to effective risk communication. Climate policy makers could also usefully learn lessons from the CV-19 crisis – the value of a quick, precautionary response, proportionate to the risk, being the most obvious one. Whether the latter lesson will be learned seems rather doubtful however. Perhaps more likely is that governments, employers and individuals all take the opportunity, post-virus, to reflect on what we value and what we can change in our own systems and behaviours. Governments should also not squander the opportunity to attach some green strings to their economic support packages and to impose carbon taxes or remove fossil fuel subsidies as we begin to emerge from the CV-19 crisis. They should certainly resist the temptation to grant further subsidies to the fossil fuel industry; if any such emergency subsidies are provided, they should have clear sunset clauses attached. They should also resist the temptation to deregulate existing environmental and climate laws such as vehicle emission standards. Deaths from local air pollution may be more invisible than those from Coronavirus, but they are still deaths